Matthews v. Matthews

PRESENT: All the Justices

KATHY MATTHEWS, ET AL.
OPINION BY
v. Record No. 081251 JUSTICE S. BERNARD GOODWYN
APRIL 17, 2009
INGEBORG D. MATTHEWS

FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
F. Ward Harkrader, Judge

In this case, we consider whether the circuit court erred

in failing to dismiss a probate appeal when the party appealing

the probate order of the clerk had also submitted a different

will for probate.

On October 3, 2005, Donald A. Matthews, Sr. (Matthews)

died, leaving a wife and three children from a prior marriage.

Allan Scott Matthews, his son, qualified as administrator of

Matthews’ estate in the Circuit Court of Spotsylvania County on

December 28, 2005. Allan Scott Matthews declared that his

father died intestate and named himself, his two siblings,

Donald A. Matthews, Jr., and Kathy L. Matthews, and his

stepmother, Ingeborg D. Matthews (Mrs. Matthews), as his

father’s heirs.

On February 1, 2006, Mrs. Matthews attempted to probate a

last will and testament of Matthews that was dated July 18, 1995

(the 1995 will). Mrs. Matthews explained to the clerk that the

original of the 1995 will had been inside a safe that was
stolen; the clerk refused to probate the 1995 will because it

was a copy. Later that day, Mrs. Matthews returned to the

clerk’s office with the original of a will executed by Matthews

on February 8, 1993 (the 1993 will). The clerk probated the

1993 will. In effect, both wills left one dollar to each of the

three children and the remainder of Matthews’ estate to his

wife.

Kathy Matthews and Donald Matthews, Jr. 1 (the children),

filed a bill to impeach the 1993 will, claiming that it was

invalidated by the express terms stated in the copy of the lost

1995 will, and because the 1995 will had been refused for

probate, their father died intestate. Mrs. Matthews filed an

Answer and Grounds of Defense to that bill to impeach. She also

later timely filed an appeal from the clerk’s order denying

probate of the 1995 will.

The children filed a motion to dismiss Mrs. Matthews’

appeal of the clerk’s order regarding the 1995 will because Mrs.

Matthews had offered the 1993 will for probate. The circuit

court denied the motion to dismiss. The children’s devisavit

vel non action and Mrs. Matthews’ appeal of the clerk’s order

regarding the 1995 will were consolidated for trial. 2 The

1
Allan Scott Matthews did not participate in the suit.
2
Donald A. Matthews, Jr. died and his wife, Julie A.
Matthews, the administrator of his estate, was substituted in
his place.

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children agreed to this consolidation and the matters were set

jointly for trial with a jury.

At trial, Mrs. Matthews offered evidence related to the

loss of the 1995 will. Mrs. Matthews testified that her husband

put the original of the 1995 will in the family safe. A police

officer testified that a safe belonging to Matthews and Mrs.

Matthews was stolen from the home. Mrs. Matthews stated that

she saw the 1995 will in the safe two weeks before the burglary.

The children argued that Matthews died intestate because the

copy of the 1995 will expressly invalidated the 1993 will, but

the original of the 1995 will was not found among Matthews’

papers at the time of his death.

At the close of trial, the circuit court granted a directed

verdict on the validity of the 1993 will, ruling that it was not

the decedent’s last will and testament. The jury found that the

1995 will was Matthews’ last will and testament, and the circuit

court entered judgment consistent with that verdict. The

children appeal.

Analysis

On appeal, the children assign error to the circuit court’s

denial of their motion to dismiss Mrs. Matthews’ appeal of the

clerk’s order denying probate to the 1995 will. The children

claim that Mrs. Matthews forfeited her statutory right to timely

appeal the clerk’s order concerning the 1995 will by offering

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the 1993 will for probate. They assert that because of Mrs.

Matthews’ election to probate the 1993 will, her appeal of the

clerk’s order regarding the 1995 will operated as an

impermissible collateral attack upon the validity of the 1993

will, resulted in Mrs. Matthews approbating and reprobating

because she assumed mutually contradictory positions, and was

barred by judicial estoppel. Mrs. Matthews asserts that her

appeal of the clerk’s order concerning the 1995 will was not a

collateral attack upon the clerk’s order concerning the 1993

will, her positions are not impermissibly inconsistent and

judicial estoppel does not bar her appeal of the clerk’s order

regarding the 1995 will.

The clerk of any circuit court has the jurisdiction to

probate wills, within his respective territorial jurisdiction,

as defined by law. Code § 64.1-77. In admitting a will, the

clerk “acts in a judicial capacity and the order made by him,

admitting or rejecting a will, is as much a judgment as though

entered by the court.” First Church of Christ v. Hutchings, 209

Va. 158, 160, 163 S.E.2d 178, 179-80 (1968). The validity of

this judgment may only be drawn into question “in the manner and

within the time prescribed by law.” Id. at 160, 163 S.E.2d at

180.

Under Code § 64.1-78, any interested person may appeal a

clerk’s order within six months after the entry of such an

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order. After entering the appeal, the circuit court shall hear

and determine the appeal “as though it had been presented to the

court in the first instance.” Id. At the same time, a person,

who is not a party to the probate of a will, may bring a bill to

impeach the will under Code § 64.1-88. After a bill to impeach

is filed, that statute provides that a trial by jury shall be

ordered to ascertain the validity of the will admitted to

probate by the clerk. Id.

The children argue that Mrs. Matthews’ appeal of the

clerk’s order denying probate to the 1995 will was an improper

collateral attack upon the 1993 will and the clerk’s order

admitting it to probate. A collateral attack is an attempt to

impeach a judgment in a proceeding not instituted for the

purpose of annulling or reviewing that judgment. See Sutherland

v. Rasnake, 169 Va. 257, 266-67, 192 S.E. 695, 698 (1937).

Thus, the alleged collateral attack must be upon the clerk’s

order to probate the 1993 will.

The children brought a bill to impeach the 1993 will as

statutorily allowed by Code § 64.1-88. Thereafter, Mrs.

Matthews appealed the clerk’s refusal to probate the 1995 will

as she is statutorily allowed to do. Therefore, prior to Mrs.

Matthews’ appeal, the clerk’s order concerning the 1993 will had

been directly attacked by the children through their bill to

impeach. Pursuant to Code § 64.1-88, upon the children’s direct

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attack upon the clerk’s order concerning the 1993 will, the

will’s validity was to be ascertained in a trial by jury. We

hold that under the circumstances, Mrs. Matthews’ appeal could

not be and was not a collateral attack upon the clerk’s order

regarding the 1993 will.

The children also claim that Mrs. Matthews’ appeal should

have been dismissed by the court because she approbated and

reprobated by offering both the 1993 and 1995 wills for probate.

Mrs. Matthews claims that she did not approbate and reprobate

because the children’s challenge to the clerk’s order concerning

the 1993 will and her appeal of the clerk’s order concerning the

1995 will were not the same litigation, but rather separate

cases consolidated for purposes of trial. Further, she claims

that she merely sought alternative outcomes available to her,

without taking impermissibly inconsistent positions.

A litigant is not allowed to “approbate and reprobate.”

Hurley v. Bennett, 163 Va. 241, 252, 176 S.E. 171, 175 (1934).

This Court has stated that a party may not “in the course of the

same litigation occupy inconsistent positions.” Id.; see also

Rowe v. Commonwealth, 277 Va. ___, ___, ___ S.E.2d ___ (2009)

(this day decided) (citing Cangiano v. LSH Bldg. Co., 271 Va.

171, 181, 623 S.E.2d 889, 895 (2006) and Powell v. Commonwealth,

267 Va. 107, 144, 590 S.E.2d 537, 560 (2004)). It is improper

for a litigant to invite error and take advantage of the

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situation created by her own wrong. Rowe, 277 Va. at ___, ___

S.E.2d at ___; Fisher v. Commonwealth, 236 Va. 403, 417, 374

S.E.2d 46, 54 (1988).

The prohibition against approbation and reprobation forces

a litigant to elect a particular position, and confines a

litigant to the position that she first adopted. Hurley, 163

Va. at 252, 176 S.E. at 175. Mrs. Matthews was first the

proponent of the 1995 will, so if she did approbate and

reprobate, the remedy would not be to dismiss her appeal, but

rather to confine her to the position she first adopted as

proponent of the 1995 will. The jury found the 1995 will to be

valid.

Further, if the children’s bill of impeachment and Mrs.

Matthews’ appeal of the order concerning the 1995 will are

considered to be the same litigation, Mrs. Matthews essentially

sought alternative theories of recovery, as prescribed by the

statutes governing the probate of wills in the Commonwealth, and

permitted by Rule 1:4(k). See Code § 64.1-77; Code § 64.1-88;

Rule 1:4(k). Rule 1:4(k) allows a party to “plead alternative

facts and theories of recovery” as long as the alternative facts

“arise out of the same transaction or occurrence.” It further

provides that “[a] party may also state as many separate claims

or defenses as he has regardless of consistency and whether

based on legal or equitable grounds.” Rule 1:4(k). Reading

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previous cases in concert with this Rule, a litigant who takes

inconsistent positions must also invite error and take advantage

of the situation created by the inconsistency in order to

approbate and reprobate. See Hoar v. Great Eastern Resort

Mgmt., 256 Va. 374, 382 & n.7, 506 S.E.2d 777, 782 & n.7 (1998)

(distinguishing Smith v. Settle, 254 Va. 348, 492 S.E.2d 427

(1997)); Fisher, 236 Va. at 417, 374 S.E.2d at 54. Indeed, Code

§ 64.1-88 provides that in trying a bill to impeach, a court may

require all testamentary papers of the same decedent to be

produced and direct the jury to ascertain, if there are more

than one, which is the will of the decedent. Code § 64.1-88.

In this case, Mrs. Matthews’ alleged support of both wills

did not invite error, nor did Mrs. Matthews take advantage of

the situation created by the inconsistency. Mrs. Matthews’

consistent position was that her husband died testate. Mrs.

Matthews told the clerk, when she attempted to probate the 1995

will, that the original will had been stolen from her safe in

2003. She offered the 1993 will for probate because the clerk

would not probate the copy of the 1995 will, and probate of

either will had the same result, each child receiving one dollar

from the estate, and Mrs. Matthews the remainder. The circuit

court did not err in refusing to dismiss Mrs. Matthews’ appeal

of the clerk’s order concerning the 1995 will based on the

allegations of approbation and reprobation on her part.

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 The children also assign error to the circuit court’s

refusal to dismiss Mrs. Matthews’ appeal of the clerk’s order

concerning the 1995 will based on the doctrine of judicial

estoppel. The modern-day doctrine of judicial estoppel is

derived from the Scottish law prohibiting approbation and

reprobation. Lofton Ridge, LLC v. Norfolk S. Ry. Co., 268 Va.

377, 381, 601 S.E.2d 648, 650 (2004) (citing Burch v. Grace

Street Bldg. Corp., 168 Va. 329, 340, 191 S.E. 672, 677 (1937)).

Judicial estoppel forbids a party “from assum[ing] successive

positions in the course of a suit, or series of suits, in

reference to the same fact or state of facts, which are

inconsistent with each other, or mutually contradictory.”

Lofton Ridge, 268 Va. at 380-81, 601 S.E.2d at 650 (internal

quotation marks omitted). In order for the doctrine to apply,

the proceeding must involve the same parties. Bentley Funding

Group, L.L.C. v. SK&R Group, L.L.C., 269 Va. 315, 326, 609

S.E.2d 49, 54 (2005). Along with a prior inconsistent factual

position or positions and identical parties, the party asserting

the inconsistent position must have also persuaded the court to

accept that earlier position. Id. at 327, 609 S.E.2d at 55.

“Absent success in a prior proceeding, a party’s later

inconsistent position introduces no risk of inconsistent court

determinations, and thus poses little threat to judicial

integrity.” Id.

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 In this case, the children claim that Mrs. Matthews

asserted an inconsistent factual position in a prior proceeding,

by probating the 1993 will and defending it in the devisavit vel

non action, then appealing the clerk’s order denying probate to

the 1995 will. They claim Mrs. Matthews held inconsistent

factual positions concerning the validity of the 1993 will and

the validity of the 1995 will. However, whether a will is valid

is not a factual assertion, but a legal assertion. Further,

Mrs. Matthews did not achieve success concerning the attempt to

probate the 1993 will, because of the children’s bill to impeach

that will.

At the time she appealed the clerk’s order concerning the

1995 will, the children had already challenged the 1993 will in

their devisavit vel non action. Because of the bill to impeach,

Mrs. Matthews had not prevailed on the issue of the validity of

the 1993 will, but rather faced a jury trial to determine the

validity of that will. Because Mrs. Matthews had not been

successful in her prior proceeding concerning the 1993 will,

Mrs. Matthews should not have been judicially estopped from

appealing the clerk’s order denying probate of the 1995 will.

For the foregoing reasons, we hold that the circuit court

did not err in denying the children’s motion to dismiss Mrs.

Matthews’ appeal of the clerk’s order concerning the 1995 will.

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We will affirm the judgment of the circuit court and will enter

final judgment for Mrs. Matthews.

Affirmed.

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