Ormsby v. Webb

. delivered the opinion of the court.

This writ of error brings up for review a judgment of the Supreme Court of the District of Columbia,’ in general term, which affirmed, a final order of the same court, in special term, admitting to probate and record a certain writing as the last will and testament of Levin M. Powell, who died in the city of "Washington on the 15th day of January, 1885. That instrument provided for thé disposition of property of the value of more than one hundred thousand dollars.

At October term, 1886, of this court a motion was made that the writ of error be dismissed for want of jurisdiction, ' “ because the judgment of the Supreme Court of the District' of Columbia to which, said writ of error was directed is not a final judgment;” and, in'the alternative, that the judgment be affirmed because- the. writ of error was sued out, merely for delay. - . That motion was Overruled. Ormsby v. Webb, 122 U. S. 630 . At the present term a second motion to' dismiss was made; this time, upon the ground that the case is one of equity jurisdiction, and could be brought here only by appeal.

The history of' this litigation, as disclosed by the record, is as follows:

kJSarah C. Colmesnil, one of the heirs at-law of the deceased,

It was thereupon ordered that the following issues be transmitted to be tried in the circuit Court before a jury:

“ First. Whether the said paper-writing purporting to be the last will and testament of the said Levin M. Powell, bearing date on the 27th of October, 1884, was executed and attested in due form of law.

“Second. Whether the cOntents-of said paperrwriti-ng were read to or by the said Levin M. Powell at or before the alleged execution thereof by him.

“.Third. Whether the said Levin M. Powell at the time of the alleged signing of said paper-writing was of sound and disposing mind and capable of executing a valid deed or contract.

• “ Fourth. Whether the said writing was executed by the said Levin M. Powell under the influence of suggestions, importu-nities and undue persuasion of the said Harriet C. Stewart, or any other person or persons, when his mind, from its disordered,' diseased and enfeebled state, was unable to resist the same.

“ Fifth. Whether the execution of said paper-writing was procured by fraud, misrepresentation or undue influence or persuasion of the said Harriet C. Stewart, or any other person or persons acting of their own volition or under the direction of the said Stewart.”

Subsequently, in the Supreme Court of the District, holding a-circuit court, an order was made that upon the trial of the above issues before a jury, Mrs. Colmesnil and others who had filed caveats, should be plaintiffs, and Charles D. Drake and William B. Webb, as the''proponents of the last will and testa

The verdict of the jury consisted of answers to the above questions. The first, second and third were answered in .the affirmative; the fourth and fifth, in the negative. A motion for a new trial having been overruled, the caveators prosecuted an appeal to the general term, which affirmed the action .of the special term.

At a subsequent date the caveau. rs filed iii the Supreme Court of the District, holding a special term for what is called Orphans’Court business, the record of the trial of the issues submitted to the jury, and moved tl at the verdict be set aside upon the ground that the court trying those issues erred in rejecting competent testimony, in its instructions to the jury, in refusing to instruct the jury as requested by the caveators, and in rulings during the trial to which they took exceptions. This motion was overruled,.and an order was made admitting the writing in question to probate and record as the will of Levin ]Vf. Powell, and directing letters testamentary to issue to the persons named- therein as executors. From this last order an appeal was taken to the general term, which affirmed the order of the special term overruling the motion to set aside the verdict of the jury, as well as the order admitting the above writing to probate, as the last'will of the deceased.

The question raised by the first motion to dismiss for want of jurisdiction in this court, having been reargued, will be again examined' in connection with the motion to dismiss upon the ground that the case, in any event, is one of equity cognizance to be brought here only by appeal.,. ¥e do this because no opinion was delivered when this motion was overruled at a former term.

The defendants in error contend, in effect, that this court is without jurisdiction to review an order of the Supreme CCourt of the District, by virtue of which a writing is finally admitted to probate as the last will and testament of the person, signing it, whatever may be the value of the matter in dispute. This, it is argued, results from the statutes regulating

■ • The act of February 27, 1801,' concerning the District- of Columbia,,# Stat. 103, created, the Circuit Court of the District, .with all- the powers in such court and the judges thereof that were vested by law .in the. Circuit Courts and judges' of the Circuit Courts of the United States, and with jurisdiction of all crimes and offences committed in the District, and of all cases in law and equity between parties, both or either of which shall be residents thereof. The eighth section of the act provided that “ any final judgment, order or decree in said Circuit Court, wherein the .matter in dispute, exclusive of costs, shall exceed the value of one hundred dollars, may be reexamined and reversed or affirmed in the Supreme Court of the United States, by writ of error or appeal, which shall be prosecuted in the same manner, under the -same regulations, and the same proceedings shall be had therein, as is or shall be provided in the case of writs of error on judgments, or appeals upon orders or decrees, rendered in the Circuit Court of the United States.” The same act created an Orphans’ Court in each óf the counties of Washington and Alexandria, that-should have the powers and perform the duties prescribed in reference to such courts in Maryland, appeals therefrom to be to the Circuit Court of the District, which should therein have all the powers of the chancellor of that State. § 12.

Among the statutes of Maryland then in force was the act. of 1798, which authorized the Orphans’ Court, whenever required by either party to a contest therein, to direct a plenary proceeding by bill or petition, to which there should be an answer on oath or affirmation, and which made' it- the duty of the court, when either party-required it, to direct an issue or issues to be made up and sent to the court of law most convenient for trying the same. The act provided that such courts of law “ shall have power to direct the jui’y, and grant a new trial, as if the issue or issues were in a suit therein instituted, and a certificate from such court, or any judge thereof,, of the verdict or -finding., of the jury, under the seal thereof, shall -be admitted by the Orphans’ Court, to establish or

By the act of March 3, 1863, 12 Stat. 762 , c. 91, the Circuit, District and Criminal Courts of the District were abolished, and the Supreme Court of the District was established with general jurisdiction in law and equity, and with the powers and jurisdiction then possessed and exercised by the Circuit Court. íhat act provided that one of the justices might hold a District Court of the United States for the District of Columbia in the same manner and with the same powers and jurisdiction possessed and exercised by other District Courts of the United States, . and a Criminal Court with the same powers as. were exercised by the Criminal Court of the District; that special terms of such Supreme Court should be held by one of the justices, at such time as the court in general term should direct, and by which non-enumeratéd motions in suits and proceedings at law and in equity, and suits in equity, not triable by jury, should be heard and determined, such justice, however’, having the power to order any such motion or suit to be heard, in the first instance, at the general term;' and that “ any party aggrieved by any order, judgment, or decree, made or pronounced at any such special term, may, if the same involve the merits. of the action or proceeding, appeal therefrom to the general term of said Supreme Court, and upon such appeal the general term shall review such order, judgment or decree and affirm, reverse,, or modify the same, as shall be just.” §5.. It also provided that “ all issues of fact triable by a jury or by the court shall be tried before a single justice; when the trial is by a jury, at a Circuit Court; and when the trial is without a jury, at a Circuit Court or special term.” § 7,

•The. eighth and ninth sections of that act are as follows:

■ “ Sec. 8.' If, upon the trial of a cause, an exception be taken, it máy be reduced to writing at the time, or it may be entered on the minutes óf the justice, and afterwards settled in such

manner as may be provided-by the rules of the court, and then stated in writing in a case or bill of exceptions, with so much of the evidence as may -be' material to the questions to be raised, but such case or bill of exceptions need not be sealed or signed. The justice who tries the • cause may, in his discretion, entertain a motion, to be made on his minutes, to set aside a verdict and grant, a new trial upon exceptions, or for insufficient evidence, or for excessive damages: Provided, That such motion be made at the same term or circuit at which the trial was had. When such motion is made and' heard upon the minutes, an appeal to the general term, may be taken from the decision, in which case a bill of exceptions or case shall be settled in the usual manner.

“ Sec. 9. A motion for a new trial on a case or bill of exceptions, and an application for judgment on a special- verdict or a verdict taken subject to the opinion of the court, shall be heard in the first instance at a general term.”

The next act of. Congress having any bearing upon the question before ús is that of- June 21, 1870,' which provides that the several general and special terms authorized by the act of March 3, 1863, “ which have been or may be held, shall, be, and are declared to be, severally, .terms of the Supreme Court of the District of Columbia; and the judgments, decrees, sentences, orders, proceedings, and acts of said general terms, special terms, circuit courts, district .courts,-and' criminal-courts, heretofore or hereafter rendered, made, or had, shall be deemed judgments, decrees, sentences, orders, proceedings, and acts of said Supreme Court: Provided, That nothing herein contained shall affect the right of'appeal as provided-by law.” The same act abolished the Orphans-’ Court and invested the justice holding_ the special term of the Supreme. Court for that purpose with the powers and .jurisdiction then held and exercised by the former court, subject, however, to the provisions of the fifth section of the act of March 3, 1863,-giving an appeal to the general term from any order involvT ing the merits. 16 Stat. 159 , 160.

The provisions, of the acts of 1863 and 1870, so far as they regulate the jurisdiction and practice in the courts of this

When the Revised Statutes of 1874 were enacted, the jurisdiction of this court as to judgments or decrees of the Supreme Court of the District was thus defined.: “ The final judgment or decree of the Supreme Court of the District of Columbia, in any case where the matter in dispute, exclusive of costs, exceeds the value of one thousand dollars, may be reexamined and reversed or affirmed in the Supreme Court of the United States, upon writ of error or appeal, in the same manner and under the same regulations as are provided in cases of writs-of. error on. judgments, or appeals from ■ decrees rendered •in a Circuit Court.” Rev. Stat. .§ 705. But. by an act approved February 25, 1879, 20 Stat. 320 , c. 99, such power of .review was extended to cases where the matter in dispute exceeded the value of $2500, exclusive of costs; and by an act passed March 3, 1885, the amount was increased to $5000, with the reservation of the right of appeal or writ of error, without regard to the sum or value in dispute, in cases involving the validity of any patent or copyright, or in which is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States. 23 Stat. 443 , c. 355.

It is contended, on behalf of the appellees, that although this court has jurisdiction to reexamine and reverse or affirm the final judgment or decree of the Supreme Court of the District of. Columbia, in any case where the value of the matter in dispute, exclusive of costs, exceeds $5000, it has not jurisdiction to reexamine the final judgment of that court, in general term, affirming an' order of the same court, in special term, admitting a will to probate and record, although such final judgment and order; unless reversed, may affect the ownership or- disposition of property of a greater value than that amount. And this view, it is argued, is sustained by the decisions-in Van Ness v. Van Ness, 6 How. 62 , 67, and Brown v. Wiley, 4 Wall. 165 . We aré of opinion that this point was neither involved nor decided in' those cases.

Before exataining those.cases-our attention will be first given . to that, of Carter's Heirs v. Cutting, 8 Cranch, 251 . That was

The case of Brown v. Wiley is to the same effect. That case arose upon a petition filed in the Orphans’ Court' before the act of 1863 was passed, raising the question whether the petitioner was a child of the intestate, and as such entitled to a certain fund in the hands of an administratrix. After that act was in force the issues were submitted to a jury empan-elled in the Supreme Court of the District, at special term, and was determined in favor of the petitioner. A motion for a new trial, on exceptions duly taken, was heard at general term and overruled. The cause was then remanded with direction to proceed according to law. Thereupon an order was made that the finding of the jury be certified .by the clerk to the Orphans’ Court, which was still in existence. From that order a writ of error was brought, and this court, holding that it was mot a final order, dismissed the writ. That this was the utmost extent of the decision is manifest from the following extracts from the opinion delivered' by Chief Justice Chase, p. 70:

“ The case, in almost every particular,' is identical with that of Van Ness v. Van Ness. In that case, as in this, an issue of fact was sent out of the Orphans’ Court-to the Circuit Court to be tried by a jury; was tried and' found in the negative. Exceptions were taken to the rulings upon the trial, and an order was ’made certifying the finding, to the Orphans’ Court. The proceeding -was brought into this court. by writ of error, which was dismissed for want of jurisdiction. . . . Tl¡e order certifying the finding to the Orphans’ Court, in the case of Yan Ness, was identical in effect with the two orderá overruling the motion for new trial, and certifying the finding in the case before us. In each case the exceptions taken at the trial before the jury were overruled, and nothing was left for action in the court before which the issues were tried; but the case went to the Orphans’ Court for final judgment.. In that case it was held that the order was not one which could,

under tbe act, be reexamined on writ of error, and we see no reason for a different ruling in this.”

•• Neither, of the above oases involved the precise question ' now under examination. The decision -in Carter's Heirs v. Cutting was, that the final order of, the Orphans’ Court, dismissing a petition which sought the revocation of' the probate of a will, could be reviewed upon its merits in the Circuit Court, and that the final order of - the latter court could' be reexamined in this court. The decision in both Van Ness v. Van Ness and Brown v. Wiley was, that an' order by the Circuit Court in the first case, and by the Supreme Court of the District in the other case, which directed the finding of the jurjr to be certified, simply directed a fact to be certified, and, therefore, was not a final judgment, reviewable by this court. In noné of. the above cases did the question arise, whether a final order ■ — = made after the trial before the jury of the issue of will or-no will — admitting to probate a paper .presented as the last will of the decedent, was reviewable upon its merits; by the' Circuit Court while the act of 1801 was in force, or by the Supreme Court of the District after the passage of the act of 1863. Nor did either of those cases involve any question as to the jurisdiction of this court to reexamine a final judgment affirming - an order of probate. The latter question is now, for the first time, presented for determination.

That an order in the Supreme 'Court of the District, at spe•cial term, admitting a will to probate and record is a final' judgment, cannot, it seemis to' us, be disputed. It was so declared in Van Ness v. Van Ness and Brown v. Wiley. A will, admitted to probate and record by a court of competent jurisdiction, is a muniment of title for all receiving property under it; and, until the order so admitting it to probate is, by some appropriate proceeding, set aside or reversed, stands in.the way of those who may have resisted the probate.- In every sense, it is a final adjudication. And that an order of probate made in the Supreme Court of the District, special term, is reviewable by the general term is made clear by the provision that a party aggrieved by any order, judgment,- or

In respect to the authority of this court to reexamine the final judgments and decrees of the Supreme Court of this .District, the words of the statute are quite as clear as those defining the jurisdiction of the general term to review the orders and judgments of the special term. It embraces the final judgment or decree of that court “ in any case ” involving a specified amount. It is true that this reexamination must be upon writ of error or appeal “ in the same manner and under the.same regulations as are provided in cases of writs of error on judgments, or appeals from decrees rendered in a Circuit Court.” But this language does not determine the nature of the “ case ” in the Supreme Court of the District, the final judgment in which is subject to reexamination by this court. It only indicates the mode in which ' a case may be brought here for review. So that the only question is whether issues framed by the Supreme Court. of the District, and which involve an inquiry as to whether the decedent was or was not incompetent, from unsoundness of mind or because of undue influence exerted upon him, to make a v^ill — issues to which there are..adversary parties — constitutes^ “ case,” within the meaning of the act of Congress defining the jurisdiction of' this court over the final judgments' and decrees of the court below. If it does not, then it would follow that a proceeding in the Supreme Court of the District to revoke the probate of a will is a “ case,” the final judgment in which, as held in Carter’s Heirs v. Cutting, may be reexamined by this court, when the value of the matter in dispute is sufficient, while a proceeding in the same court involv

There are other decisions that throw some light upon the inquiry as to the jurisdiction of this court to reexamine the final judgments or decrees of the highest court, of this District. In the case of Custiss v. Georgetown and Alexandria Turnpike Company , 6 Cranch, 233 , one of the questions was as t.o the jurisdiction of this court to review the final order of the Circuit Court for the District of Columbia quashing an inquisition taken by the marshal condemning land for a turnpike road. Its jurisdiction was maintained. ' By the words of the act constituting the Circuit Court of the District, this court was given jurisdiction .to reexamine “ any final judgment, Order or decree in said Circuit Court, wherein the matter in dispute, exclusive of costs, shall exceed the value,” etc. These words, Chief Justice- Marshall said, were “more ample’ than those employed; in. the judicial act.” ’ It will be found 'upon comparing the statute defining the. jurisdiction of this court over the judgments and decrees of the Supreme Court of 'this District, with the statute of 1801 creating the Circuit Court of the' District,'that the words of the former are-as broad and ample as the words of the latter. The jurisdiction

Whatever difficulties may have arisen, in cases like this, while there existed in this District a separate, distinct tribunal, having original cognizance of the probate of wills and the administration of the estates of deceased persons, cannot ari§e under existing legislation, which brings all such business within • the- cognizance- of the Supreme Court of the District, and makes all orders, whether in its special or general term, the orders of that court. As was said in Metropolitan Railroad Co. v. Moore, 121 U. S. 558 , 571, 573, the act of 1863 was the introduction into this District of a new organization of its

We are of opinion that an appeal to the general term from the final order of probate made in the special term, which is not based upon- a judicial determination of facts, but merely upon the finding of a jury, of necessity, brings into review, before the. general-term'all the questions of 'law that are properly presented by the bill of exceptions taken at the trial. We say,-of. necessity, because: 1. The statute requires the Supreme Court of the District, at. general term, to review, upon appeal, any order, judgment or decree of the special term, involving the merits of the action or proceeding. 2. The judgment of the special term admitting.a will to probate and record, pursuant to the verdict of the jury upon issues relating to the competency of the deceased to make a will, clearly involves the merits- of the controversy, because it establishes the- validity as a will of the writing offered for probate. 3. The right of appeal to the general term from such a judgment _ of the special term would be of no value whatever, in most cases, unless the former could,, upon such appeal, deter

So an appeal to this court from the final judgment of the Supreme Court of the District, affirming the order of probate, of necessity, brings here for reexamination all the questions properly arising upon those bills of exceptions. The presentation of the instrument in question for probate' as the last will of the deceased, the division of the adversary parties into plaintiffs and defendants, the framing of the issues' to be tried by the jury, the trial before the jury, the allowance of'bills of exception, the motion for a- new trial and the overruling of that motion, the admission of the will to probate, and the affirmance of the order of probate, all occurred, not, as ■ under the old system, in different courts but in the same court — the Supreme Court of the District of Columbia. -If this proceeding, in which there are adversary parties, and the issues in which involve rights of property exceeding in value, the jurisdictional amount, be, within the meaning of- the statute, as we hold it is, “ a case ” which has been finally determined by the Supreme Court of the District, our authority to determine the questions of law, properly raised, and which in the court below, in any of its divisions, controlled the right to have the. will probated, cannot be affected by the circumstance that the original order of probate simply followed the finding of the jury, and was made by the court below, held by a single justice, not by the court in general term.

Nor is the question before us affected by-the consideration that an order of the general term, merely affirming an order of the special term which overruled a motion for a new trial, where the finding of the jury is favorable to the caveatees, is not itself a final judgment. Such an order is, in legal effect, a direction that a judgment of probate be entered by the same court which denied the new trial. It is only when that judgment is entered in special term., and is followed by judg

For the reasons which have been stated we are of opinion that the motion to dismiss the writ of error for the want of jurisdiction in this court to review the judgment in question was properly overruled at a former term.

And we are of opinion that, the last motion to dismiss, which, proceeds upon the ground that this case is one of equitable cognizance to be reviewed here, if at all, only upon appeal, must also be overruled. It is, of course, undisputed that a final decree in equity, in the court below, cannot be reviewed here by means of a writ of error. But a proceeding involving the original probate of a last will and testament is not strictly a proceeding in equity, although rights arising out of, or dependent upon, such probate have often been determined by suits in equity. In determining the question of the competency of the deceased to make a will, the parties have an absolute right to a trial by jury, and to bills-of exceptions covering -all the rulings of the court during the progress of such trial. These are pot the ordinary features of a suit in equity. A proceeding in,this District for the probate of a

We come now to consider the merits of the case as disclosed by the bills of exceptions taken by the caveators at the trial.' The principal questions before the jury related'to the alleged undue influence exerted upon the testator in the execution of the will, and to his capacity to make a disposition of his property according to a fixed purpose. Upon these points the-instructions given,, at the instance of the caveators, were certainly as full as they could have desired.

- The first exception taken by them relates to the exclusion of evidence tending to prove that the' decedent said to' the witness that he received the bulk of his estate by breaking the ■will of his grandfather, who was also the ancestor of the caveators, and that his estate- consisted in a great degree of that property with its accumulations. Argument is not needed to show that the manner in which the decedent acquired his estate was wholly immaterial upon the issue as to whether the paper in question was or not valid as his last will and testament.

The second and third exceptions refer to the exclusion of testimony tending to show, by the declarations of Mrs. Stew-art, one of the principal legatees, made about or after the date of the execution of the will, that she had knowledge at that time of the execution of the will and of its provisions. The exclusion of this evidence was right. ' The proper foundation being laid, the declarations of Mrs. Stewart could have -been proved for the purpose of impeaching or discrediting her. testimony as a witness for the cayeatees. But such declarations, not under oath, whenever made, were not competent for any

■ The fourth exception is based upon the refusal of the court to give this instruction: “ In order to establish undue influence it is not necessary to prove the influence to have been exercised at the time of the execution of the will or with reference to that act; but if the jury believe from the evidence that the utidue influence existed prior to and near the*time of the execution of the will,- they may infer that the ndll was executed under the continuance of such influence.”'' — It was not error to' the prejudice of the caveators to refuse this instruction, for the reason, if there was no other, that the court had .already, at their instance, fully instructed the jury upon the subject of undue influence. Upon the motion of the caveators the jury were instructed that if the alleged will or any part of it was obtained by undue influence they should find it in their verdict that it was so obtained; that it was not necessary, in order to jprove that he was unduly influenced in the execution of the will, that the mind of the deceased be.shown to be so weak as to render him ■ incapable of attending to ordinary business; that it was material to inquire not only whether the will expressed. his intention at the time of its execution but how that intention was produced; that influence obtained by flattery^- importunity, threats, superiority of will, mind or character, or by what art soever that human thought, ingenuity, or cunning might employ, which would give dominion over the will of the deceased to such an extent as ■ to destroy free agency or constrain him against his will to do what he was unable to refuse, was such influence as the law condemned as undue, when exercised by any one immediately over the testamentary' act, whether by direction or indirection, or. ob-. tained at one time or another; and that if they believed, from all the facts and circumstances in evidence, that the alleged will was the resült of an unsound mind or of the undue influence or importunities of the person or persons- surrounding the alleged testator at the time of the execution thereof,, or both, they should so say in their verdict.

The instruction set out in the fifth exception was so manifestly wrong that it is unnecessary to give it special consideration.

■The instructions contained in the seventh and eighth exceptions were properly refused upon the ground that the jury had already been instructed that it was both their right and duty to consider all the proof before them, and make such answer to the questions as the whole evidence justified.

The only remaining assignment of error to be noticed is that referring to the following instruction given by the court: “If the jury shall believe the evidence of Mrs. Harriet C- Stewart' upon the. subject of undue influence, given by her in this case, then the verdict must be in favor of the defendants and. in support of the will.” It is clear from the record that if Mrs. Stewart did not exercise undue influence over the testator there was no ground to suppose that any one else did, or to doubt the validity of the paper in question as a last will and testament. Her .evidence covered the whole casé so completely that, if the jury believed what she said, they were bound to sustain that paper .as a valid will. With''her evidence,.taking

Upon the whole case we do not perceive any ground upon which to disturb the finding, of the jury.

The judgment of the Supreme Court of the District, in gem eral term, which affirm,ed the judgment in special term, admitting the paper in question to probate and- record as the last wül cmd testament of Levin M. Powell, must be affirmed, and it is. so ordered.

Me. Justice Gray, not having heard the whole argument, took no part in the decision.