March 23, 1928. The opinion of the Court was delivered by A reconsideration of this case upon a rehearing has convinced the Court that the conclusion reached in the first opinion is erroneous, and that instead of being reversed the decree should be affirmed.
This is an action commenced July 16, 1924, for the purpose of having it adjudicated that a judgment of the Court of Common Pleas for Florence County, entered upon a verdict rendered in May, 1914, declaring that the will of Robert J. Muldrow, Sr., which had been proved in common form in the Court of Probate, was "no will," is null and void, for *Page 513 want of jurisdiction in the Court of Common Pleas to so determine, and for fraud in the proceedings eventuating in said verdict and judgment.
The plaintiff, Robert J. Muldrow, Jr., a grandson of the alleged testator, claims to be a devisee of the land in question, under said will, and prays that the proceeding referred to be set aside as a cloud upon his title.
The defendants are the heirs at law of Mrs. Annie G. Muldrow (the widow of the testator), to whom the property in question was allotted in the division of the property of Robert J. Muldrow, Sr., as an intestate estate, S.T. Burch, the purchaser of the property in question at a sale for partition of the property of Annie G. Muldrow, deceased, and M.M. Brown and L.A. McCall, against whom the defendant Burch makes certain claims.
It thus appears that the regularity of the immediate proceeding under which Burch acquired his title (the partition proceeding, in which the estate of Annie G. Muldrow, deceased, was divided) is not in question; the attack is upon the title of Annie G. Muldrow, from whom Burch claims, by reason of the alleged nullity of the judgment declaring, upon proof in solemn form of the will of Robert J. Muldrow, Sr., that it was "no will."
Robert J. Muldrow, Sr., died on April 2, 1911, leaving a will dated March 30, 1911, in which he devised to his grandson, the plaintiff, the remainder in fee, after a life estate to another, in the real estate described in the complaint. On April 17, 1911, J.A. Muldrow, his son, and Marion Lee Jeffords, his daughter, who were named executor and executrix of the will, presented the will for probate to the Judge of Probate of Florence County, and it was duly admitted to probate in common form on that day. The personal representatives qualified, and proceeded with the execution of the will and the administration of the estate. On November 29, 1911, certain of the heirs at law of Robert J. Muldrow, Sr., interested in invalidating the will, gave notice *Page 514 to the Judge of Probate requiring it to be proved in due form of law. Thereupon the Judge of Probate issued a summons addressed to all of the heirs at law of Robert J. Muldrow, Sr., "such persons as would have been entitled to distribution of the estate if the deceased had died intestate," requiring them to answer the petition. The summons upon this petition did not include the plaintiff, Robert J. Muldrow, Jr., evidently for the reason that he was interested only as a devisee; his father, J. Archie Muldrow, who was a son of the testator, was then alive, and the plaintiff could not have been an heir at law, one of the class to whom only the statute requires the extension of notice of such proceeding.
Upon the day fixed for hearing proof before the Judge of Probate, upon the issue of admitting the will to probate in due form of law, the attorneys on both sides agreed to waive further proceedings in the Probate Court, and, quoting from the agreed "case":
"Thereupon it was agreed between counsel for the said contestants and counsel for the said proponents of the will that the issue of `will or no will' be submitted to the Court of Common Pleas for Florence County."
The Judge of Probate then signed an order, consented to by Walter H. Wells, Esq., attorney for the contestants, and W.F. Clayton, Esq., attorney for the proponents:
"That the issue of `will or no will' be and same is hereby certified to the Court of Common Pleas for Florence County for its decision, and that the formalities required by Rule 28 of the Circuit Court be considered waived."
It is not so stated in the record, but we assume that the Probate Judge made a certificate to the Court of Common Pleas, upon which the issue was presented to that Court. At any rate, the matter came up for trial before his Honor, Judge Rice, and a jury, at the Spring Term, 1913, of said Court. At this trial a most remarkable situation arose. As his Honor, Judge Rice, states in his order of July 7, 1913: *Page 515
"At the trial of the proponents of the will (the personal representatives) were represented by Mr. W.F. Clayton and Mr. Henry Buck, and after a good deal of evidence was in,all tending to sustain the will, the Court was asked to allow the parties and their attorneys a few minutes in which to consult, as they wished to settle the matter without further contest. On returning to the courtroom, Messrs. Buck and Clayton stated that their clients desired to discontinue theiropposition to setting aside the will, and asked that the Court allow them to withdraw from the case, which request was granted in a formal order. Thereupon Mr. Philip H. Arrowsmith, a young attorney, was requested by the proponents of the will to represent them formally, which he did,but, in accordance with the wishes of the proponents of thewill, made no effort to establish the will."
Testimony was offered by the contestants against the validity of the will. The case was submitted to the jury, apparently without argument, and a verdict of "no will" was rendered. Thereafter, as his Honor states, at his suggestion, the executor made a motion for a new trial, and, after considering it, his Honor filed an order dated July 7, 1913, granting a new trial, upon the ground that the circumstances above detailed convinced him that there had not been a fair trial of the issue. He explained the remarkable conduct of the executor in this way: "It is due the executor, who as stated, is the son of testator, to state that I was impressed with his evident willingness and anxiety to do his full duty as executor, and appeared to cease his efforts to sustain the will only after pressure was brought to bear on him by his mother, the wife of the testator (who, we interpolate, would receive much more as an heir at law of the estate, intestate, than as a devisee under the will), and other members of his father's immediate family," regardless of the interests of his own son, the plaintiff, and other remaindermen under the will. His Honor, Judge Rice, further took the position that the proponents of the will did *Page 516 not represent the interest of the remaindermen, and directed by his order that they be made parties to the proceeding.
Accordingly, the original summons and petition were amended by adding the remaindermen, including the plaintiff, as respondents. The amended summons and petition were entitled, as the originals were, "In the Court of Probate"; the summons being signed "H.A. Brunson, Probate Judge, Florence County," and dated October 1, 1913.
There is some question whether the summons directed to be served upon the plaintiff, Robert J. Muldrow, Jr., by the order of his Honor, Judge Rice, was properly entitled and signed, and whether, as a fact, it was served upon him. As the statute does not require the summons in such a case to be served upon devisees under the will, but only upon "such persons as would have been entitled to distribution of the estate, if the deceased had died intestate," these questions are immaterial.
At the April term, 1914, of the Court of Common Pleas, the case came up for trial before his Honor, Special Judge Ramage. A day or two before the trial commenced, upon the application of certain parties connected with the case, his Honor, Judge Ramage, on April 30, 1914, signed an order appointing C.J. Gasque, Esq., guardian ad litem for the infant defendants, remaindermen, who had been included among the respondents to the petition under the order of his Honor, Judge Rice. Mr. Gasque filed a formal answer for the remaindermen, including the plaintiff, and the trial proceeded. Mr. Arrowsmith, representing the proponents of the will, did not take an active part in establishing the will, "as it was evident that the family had decided not to fight the case further." (Judge Dennis' decree.) Mr. Gasque, however, did take an active part, representing the remaindermen, and apparently produced all available witnesses to establish the will. The contestants produced witnesses to establish the testamentary incapacity of the testator, and the case was submitted to the jury. The result was as before, *Page 517 a verdict of "no will." It does not appear that a motion for a new trial was made or an appeal taken. Consequent upon the verdict of "no will," a judgment roll was made up and filed.
Thereupon the heirs of Robert J. Muldrow, Sr., proceeded to subdivide all of the real estate of which he died seized and possessed, as if there had been no will; and the land in question in this action was conveyed by all of the other heirs of the deceased to the widow, Annie G. Muldrow. This conveyance was executed in 1914, and she continued in possession until her death, at some time, not stated in the record, prior to December, 1923.
After the death of Annie G. Muldrow, the widow, her heirs at law instituted an action for the partition of her real estate, including that involved in the present action, which resulted in a decree of sale for partition, dated December 19, 1923; at the sale the defendant S.T. Burch purchased the property now involved, at a fair price, we assume.
The plaintiff, who was born June 12, 1900, and who was less than 14 years old when the judgment of "no will" was entered upon the verdict rendered before Judge Ramage, in May, 1914, has instituted this action to have the Court adjudicate that judgment is void. The action was commenced, as already stated, on July 16, 1924.
The complaint contains a detailed statement of the facts hereinbefore, in substance, set forth. The plaintiff relies upon three grounds:
(1) That the summons and petition were not served personally upon him.
(2) That the verdict and judgment were obtained by fraud and collusion between the proponents and contestants of the will.
(3) That the Court of Common Pleas which rendered the judgment of "no will" was without jurisdiction to entertain the issue of "will or no will," except upon appeal from the Probate Court. *Page 518
By an order of his Honor, Judge Shipp, dated September 13, 1924, it was referred to the Master of Florence County to take the testimony and report the same. On September 19, 1924, the testimony was taken, and on the 24th it was filed with the Clerk of Court. The case was heard by his Honor, Judge Dennis, in the fall of 1924, and on February 23, 1925, he filed a decree, overruling all of the grounds taken by the plaintiff, and dismissing the complaint. From that decree the plaintiff has appealed.
For the reason stated above the first ground of contention, that the summons and petition were not personally served upon the plaintiff, may be dismissed without further notice.
As to the second ground, that the verdict and judgment of "no will" were obtained by fraud and collusion between the proponents of the will and the contestants, there is no evidence tending to show that Burch, the purchaser at the partition sale ten years later, was a party thereto or affected thereby.
The most serious question is the third ground, that the Court of Common Pleas which rendered the judgment of "no will" was without jurisdiction to entertain the issue of "will or no will," except upon appeal from the Probate Court. This theory is based upon the assumption that under the Constitution and statutes of this State, the Court of Probate has exclusive jurisdiction in the matter of the proof of wills, both in common and in due form of law. The first inquiry therefore must be directed to the correctness of this assumption.
There can be no question of the fact that under the Constitution, the Court of Probate has jurisdiction "in all matters testamentary and of administration, in business appertaining to minors and the allotment of dower, in cases of idiocy and lunacy and persons noncompos mentis." It does not necessarily follow that the jurisdiction is exclusive, and that the Court of Common Pleas, the Court of Universal Jurisdiction (except when *Page 519 specifically limited), has not jurisdiction in any of such matters. As the Constitution provides, in reference to Courts of Common Pleas: "They shall have jurisdiction in all civil cases." Article 5, § 15.
The case of Jordan v. Moses, 10 S.C. 431, was instituted in 1877, while the Constitution of 1868 was in force. It was a proceeding instituted in the Probate Court by creditors for an accounting by the executors, and a sale of the real estate of the testator to pay debts. The defendants pleaded the pendency of another action in the Court of Common Pleas by another creditor, against the executors, legatees, and devisees, for account, injunction, and to marshal assets. The Supreme Court sustained the plea of another action pending, over the objection of the defendants that the Probate Court had exclusive jurisdiction of the matter, saying:
"If it can be made to appear that the Court of Common pleas had jurisdiction of * * * [the earlier case], * * * it is very manifest that the judgment below [sustaining the plea] must be sustained."
Considering this question, the Court said:
"The Court of Common Pleas is invested by the Constitution [of 1868], Article 4, § 16, with `jurisdiction in all matters of equity,' and no one will deny that the object of the action brought by Crane, Boylston Co. [the earlier action] was one of which the Court of Equity, at the time of the adoption of the Constitution of 1868, had cognizance. The fact that jurisdiction of such an action may also have been given to the Court of Probate does not oust the jurisdiction of the Court of Common Pleas under the principles established in the recent case of Walker v. Russell [10 S.C. 82] manuscript decision, filed April 23, 1878."
The Court might well also have called attention to the provisions of Article 4, § 15. "The Courts of Common Pleas shall have * * * exclusive original jurisdiction inall civil cases" — which however, taken in connection with *Page 520 Section 20, presented a case of concurrent jurisdiction with the Probate Court, in matters therein confided to it.
In the case of Walker v. Russell, 10 S.C. 82, the case to which reference is made in Jordan v. Moses, 10 S.C. 431, and upon the authority of which the latter case was decided, the plaintiff had been adjudged a lunatic in a proceeding instituted in the Probate Court; he then brought an action in the Court of Common Pleas against the committee appointed in the proceeding in the Probate Court, for leave to traverse the inquisition of lunacy and for an injunction against the threatened action of the committee in mortgaging his land. The defendant demurred to the complaint upon the ground, among others, that the Court of Common Pleas had no jurisdiction of the matters, they being exclusively within the jurisdiction of the Probate Court. This Court dismissed the demurrer, saying:
"There is no doubt, however, but that the Court of Common Pleas is a Court of General Jurisdiction in civil cases, while the Court of Probate is one of limited and inferior jurisdiction. Hence, according to a well-established rule of law, those who undertake to deprive the former of jurisdiction in any given case and give it to the latter must be able to point out some particular provision of the Constitution which either expressly or by necessary implication gives jurisdiction of such case to the limited and inferior tribunal to the exclusion of the superior tribunal. There is no pretense that there is any clause in the Constitution which, inexpress terms, gives the Probate Court exclusive jurisdiction `in cases of idiocy and lunacy and persons non composmentis.' Section 20 of Article 4 does give that Court jurisdiction in such cases, but not exclusive jurisdiction."
Further, the Court said:
"The necessary inference would seem to be that while the Court of General Jurisdiction — the Court of Common Pleas — was to have unlimited jurisdiction of all matters which were formerly cognizable by the Court of Equity, which *Page 521 was then abolished [jurisdiction in all civil cases, under the Constitution of 1895, we interpolate], the Court of inferior and limited jurisdiction — the Court of Probate — was to have concurrent jurisdiction in some of those matters, to wit, those which were particularly specified in the Section 20 conferring such jurisdiction. Any other view would involve a palpable inconsistency between these two sections of the Constitution, which must, of course, if possible, be avoided."
In the case of Witte v. Clarke, 17 S.C. 313, the plaintiffs instituted an action of foreclosure of a mortgage upon certain real estate. Pending the action, the widow of the mortgagor prosecuted proceedings for dower in the Probate Court and had it concluded. The plaintiffs filed a supplemental complaint alleging the dower proceedings and asked that they be enjoined and that the matter of dower be adjudicated in the foreclosure proceedings. The demandant in dower contended that the Probate Court had exclusive jurisdiction of the matter of dower. This Court held that the Court of Common Pleas had obtained jurisdiction over the subject-matter of the controversy, Green Hill plantation, before any proceedings were instituted in the Probate Court for dower, and had the prior right to adjudicate the controversy as to it, saying:
"It is very true that the Court of Probate has jurisdiction in cases of dower, but its jurisdiction is not exclusive, for the Court of Common Pleas has concurrent jurisdiction in such cases. This is the necessary result of the principles announced in the case of Walker v. Russell, 10 S.C. 82."
In Fogle v. St. Michael Church, 48 S.C. 86;26 S.E., 99, considering what is now Section 5414, Vol. 3, Code 1922, relating to the sale of real estate in aid of the assets of a decedent's estate, the Court said:
"It is true, this section provides that proceedings there under may be instituted in the Probate Court, but as the Court of Common Pleas would have concurrent jurisdiction in such cases, the provisions of said section are also applicable *Page 522 to the Court of Common Pleas" — citing Jordan v.Moses, 10 S.C. 431.
In State v. Glenn, 14 S.C. 118, the Court said:
"There is no recognized principle by which a grant to an inferior out of the jurisdiction previously exercised by a Court of general original jurisdiction can operate as an exclusion of such Superior Courts unless made so by the terms of the grant."
In Chapman v. Smith, 133 S.C. 122; 130 S.E., 212, it is said:
"Probate Court has not exclusive jurisdiction in settling estates. * * * Action on guardian's bond against personal representatives of surety held within jurisdiction of Court of Common Pleas."
We thus see that in "matters of administration," calling executors or administrators to account, selling real estate in aid of personal assets to pay debts, the Court of Common Pleas has concurrent jurisdiction with the Probate Court; likewise in business appertaining to minors, the allotment of dower, cases of idiocy and lunacy and persons non composmentis. The only class of cases referred to in Article 5, § 19, conferring jurisdiction upon Probate Courts, as to which there appears to have been no explicit judicial utterance, is matters testamentary. In case after case, the Court of Common Pleas has assumed jurisdiction to enforce performance of a contract to make a will. It appears illogical to hold that of all the enumerated classes of cases except one the Court of Common Pleas has concurrent jurisdiction.
We think that beyond these considerations, Section 5351, Vol. 3, Code, 1922, practically confers jurisdiction of the issue of "will or no will" upon the Court of Common Pleas. While, as stated in the case ofMyers v. O'Hanlon, 12 Rich. Eq., 196, "In legal construction, the Court of Common Pleas has but appellate jurisdiction in such cases," that expression must refer to the course of procedure outlined in Section 5351. But as there outlined, *Page 523 it has not a single element of an appeal; it contemplates a trial de novo in the Common Pleas Court. Controversies as to the rulings of the Probate Judge upon the admission of evidence, preponderance of the evidence, or matters of law or procedure, vanish from the case. There are no exceptions or assignments of error to be considered. The case is transferred to the Court of Common Pleas fortrial upon the simple act of giving notice of appeal. It is significant that in this connection no reference is made to an appeal. The right of review is secured by the general provision in Section 187 of Code Civ. Proc.
In Peeples v. Smith, 8 Rich., 90, it is declared that in the Court of Common Pleas "the case should be tried anew. That is, as I understand, it is tried as a new case."
In Prater v. Whittle, 16 S.C. 40, the Court said:
"The relation of the Probate Judge to the case was in no way analogous to that of a referee appointed to hear and determine issues referred. Upon appeal from the Probate Court on a question of will or no will, issues of fact are tried de novo in the Circuit Court."
In the case of In re Solomon's Estate, 74 S.C. 192;54 S.E., 208, the Court said:
"Under the Act of 1839, * * * the Court of Ordinary had jurisdiction of the probate of wills; and the appeal from the Ordinary was not to the Court of Equity but to the Court of Common Pleas, where all questions of law and factwere tried anew with or without a jury."
The case of Myers v. O'Hanlon, 12 Rich. Eq., 196, contains an exceedingly significant statement:
"By the thirteenth section of the Act of 1839, * * * appeals from the sentence or decree of the ordinary relative to any will or testament are directed to be made to the Court of Common Pleas, and it is expressly enacted that all issues arising out of them `shall be tried according to the usage and practice of that Court.' Upon the trial of such issues the same rules of evidence, mode of examination, and forms of *Page 524 procedure, are observed as on the trial of original causes in that Court. In truth, the validity of contested wills is tried and determined practically in the Court of Common Pleas. The primary decree of the Ordinary in such controversies is regarded by the parties as comparatively immaterial. It is upon the appeal to the law Courts that the actual contest, the substantial trial, really occurs. In legal construction, the Court of Common Pleas has but appellate jurisdiction in such cases. But by the express provision of the Act of 1839, if an issue of fact is involved, the cause is to be tried anew, as though it were an original cause in that Court, and the parties are at liberty to raise new questions, never considered by the Ordinary, or even made before him."
If the attorneys in the case before the Probate Court made a mistake, which we do not think, it was manifestly due to the foregoing observation. In view of it, the conclusion was natural; here is a contested will case; however it goes there will be an appeal; why the unnecessary tedium of a trial in the Probate Court when it will all be gone over in the Court of Common Pleas?
They agreed to waive the trial before the Probate Judge and to carry the case upon his certificate to the Court of Common Pleas, and we think that this stipulation entered into by the attorneys representing all parties who were entitled to be heard in that proceeding, should be recognized as equivalent to an appeal from the Probate Court. If not equivalent to an appeal, it amounted to a submission of the issue by agreement to a Court having unquestioned jurisdiction of the subject-matter, to which the parties agreeing had no right to complain by reason of the lack of process, the purpose of which is simply to get the parties before the Court.
It seems to the Court that it would be a reproach upon the administration of justice to hold that, where both sides of a controversy were represented by reputable attorneys, and agreed to a course of procedure by *Page 525 which a perfectly immaterial step in a proceeding was agreed to be omitted, and the case by a short cut carried to the tribunal which unquestionably would have had jurisdiction if the immaterial step had been taken, persons who paid their money upon the faith of the adjudication had, should lose, without fault on their part. Great confidence is naturally placed by the people at large in sales made under the orders of the Court, and that confidence should not be shaken without the most compelling considerations. See Bush v.Aldrich, 110 S.C. 491; 96 S.E., 922. Beall Co. v. Weston,83 S.C. 491; 65 S.E., 823.
The judgment of this Court is that the decree of his Honor, Judge Dennis, be affirmed.
MESSRS. JUSTICES COTHRAN and CARTER concur.
MESSRS. JUSTICES BLEASE and STABLER dissent.