Jefferson County MsArchives Court.....Scott, William 1839
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Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Scott, Adm'r. et al., Appellants, v. Calvit et al.

pages 148-160

Where a demurrer to a bill was overruled and the bill subsequently amended and 
new parties and new matters improperly joined: Held, the amended bill was 
demurrable.

According to the well established principles of pleading in chancery, the heir 
cannot join the administrator in an original bill for relief and for an 
account of personal estate, for the rents and profits of land, or for the 
recovery of land.

Under the statutes of this state adults have five years allowed them after the 
probate of a will to contest it, and infants five years after they arrive at 
age.

The statute makes the probate of a will conclusive evidence, and will not 
suffer it to be contested after five years, or in case of an infant after five 
years from the removal of his disability.

When the validity of a will has been contested in the manner pointed out by 
the statute, the decree is absolute against all persons, infants as well as 
adults, although all those interested were not parties to the proceeding.

APPEAL from the superior court of chancery.

The record shows that, on the 8th day of March 1836, Wi11iam Scott as the 
administrator of Eliza Lucretia Calvit filed his bill in the court below 
against Sarah Calvit, James G. Wood and David Hunt, in which amongst other 
matters he slates that, in 1821 Thomas Calvit, under whom complainant’s 
intestate claims title to the estate sued for, made his last will and 
testament in which he made certain specific bequests, but left the greater 
portion of his estate undisposed of and in which he revoked all former wills. 
Wood and Hunt with others who never qualified were made executors; that a 
certain Samuel Calvit and said Eliza Lucretia Calvit were the only heirs at 
law of the said Thomas Calvit. The said Samuel died in 1826, having had 
possession of the estate of his father from the time of his death. He made a 
will in which his wife Sarah Calvit one of the defendauts was made executrix. 
Said Sarah took possession of the whole of the estate of the said Samuel 
including that of the said Thomas Calvit. Eliza L. Calvit during all this time 
was an infant, and was such at the time of her death in 1833. The bill insists 
that she was entitled to one half of the whole estate of the said Thomas not 
disposed of in the will of 1821. Samuel Calvit however claimed the whole of 
the estate, and to enforce his claim filed a bill against the said Eliza L. 
Calvit and her guardians James C. Wood and David Hunt to perpetuate testimony 
and to obtain an injunction to restrain the orphans' court of Jefferson county 
from making distribution to said Eliza of the one half of the estate of the 
said Thomas Calvit, on the ground, as alleged, that by a will made by the said 
Thomas in 1818, the whole real and personal estate of the said Thomas was 
devised and bequeathed to the said Samuel Calvit, and that the will of 1821 
was only intended to be a codicil to that of 1818. On this proceeding the 
chancellor, in pursuance of the statute, directed an issue to the country of 
devisavit vel non, which was found in favor of the said Samuel and the will of 
1818 established as the last will and testament of the said Thomas, and the 
chancellor accordingly decreed a perpetual injunction against proceeding under 
the will of 1821, according to the prayer of the bill. The present bill 
charges that decree to be erroneous in many respects, and prays that it may be 
opened and the whole subject reinvestigatud on its merits. and also prays an 
account, and a distribution to the complainant, &c. To this bill the defendant 
demurred, but the demurrer was overruled. It was afterwards amended by making 
the heirs at law, the present complainants, parties to the bill. To this 
amended bill the defendants also demurred, and the chancellor sustained the 
demurrer and dismissed the bill.

Grayson, for the appellants.

1. The last demurrer should have been overruled. Because, "after a demurrer 
overruled, another demurrer, the same in principle cannot be put in. And the 
reason is clear; for that is no more than calling upon the court to rehear the 
former judgment, in a manner contrary to the usual form." The proposition is, 
that the same demurrer, upon the same principle, shall not be twice used. 11 
Vez. 71; 2 Scho. & Lef. 292; Mitford's Plead. Am. Ed. 139; 1 P. Williams, 736; 
Blake’s Chan. 47, 504; 1 Harrison’s Chan. 367, 717, 92, 174; 2 Vez. 232; 3 
Harr. and Johns. 77; 2 Mad. 459.

2. If the bill be considered as an original bill, it can be sustained upon the 
following positions:

1. Every correct decree against an infant, is rendered nisi, not absolutely.

2. The condition is, that the decree shall stand, unless the infant shall, 
within a given term, come into court, and show cause against such decree.

3. There is no authority limiting the infant to a particular form and manner, 
of exhibiting his showing. All that can be collected from the books, when 
directed particularly to this subject is, that an infant will be allowed to 
come in by petition to be allowed to file an answer, and such petition will be 
granted. And also, that he will be allowed to file an original bill for the 
same purpose. 2 Atkyns, 531.

4. Upon an application made by an infant for permission to show cause against 
a decree, it follows, as a matter of course, that the decree be opened, and 
the infant allowed to show such cause as he may deem fit.

5. There is no authority which circumscribes his causes to defects apparent 
upon the record or decree. But the nisi reservation made in all decrees 
against an infant, guarantees to him the right of reinvestigating the merits 
of the controversy.

The humanity of the law holds out to him the assurance, that his rights shall 
not be concluded by a decree when they are entrusted, by that law, to the 
superintendence of agents who may prove treacherous to him.

6. If an infant may come in by petition, and be permitted to file his answer, 
and have the cause reheard upon its merits, why, it is asked, may he not file 
an original bill for the same purpose, or for the purpose of rehearing, and 
further relief?

7. The general current of authorities in relation to the mode of setting aside 
decrees is not applicable to the case of an infant.

8. The decree nisi, which is generally made, is sufficient to show, that 
something more is reserved to him than the privilege of filing a bill of 
review for error on the face of the decree. For the right to reverse upon bill 
of review for error in the decree, he has, without its being reserved to him 
in the decree, as it is to all other persons. If the decree nisi means any 
thing, its design is to give the infant a privilege, and an extent of redress, 
beyond that secured to the ordinary class of litigants, and to be heard again 
upon the merits. 2 P. Wms. 401; 1 Ibid, 504.

9. By our statute, two years are prescribed, within which time a bill of 
review shall be filed, and not after. Six months are generally allowed in 
decrees against infants as the time within which cause must be shown against 
the decree. If the privilege secured to him in the decree, is permission to 
correct the errors apparent upon its face only, then his right to reverse in 
point of time, is more limited than that of an adult, who has two years, and 
the infant only six months after he arrives at age, which may happen within 
the six months or day given to show cause.

The reservation in the decree, it is therefore insisted, secures the right to 
be heard upon the whole merits of the cause.

3. Should the bill be considered as a combination of revivor, review and 
original, or in the nature of an original, it can still be sustained in the 
whole, or in part.

1. The two first and a supplemental bill may be combined. And a supplemental 
bill may be used to supply a defect in the original bill, and also to put a 
new matter in issue. It is, so far as the new matter is concerned, in the 
nature of an original bill. Mitford’s Plead., Eng. Ed. 81; Ibid. 59; 1 Vez. 
135; 5 Johns. Chan. Rep. 342; Ibid. 267.

2. A bill of revivor may also be in the nature of an original bill, and 
partake of its character. General relief may asked by it. Mitford’s Plead., 
Eng. Ed. 70, 71; Ibid. 81; 4 Paige Chan. Rep. 481.

4. But if the bill, by reason of its triple character, is defective, the 
demurrer should have been sustained to that part of the bill which has been 
improperly introduced, but not to the whole bill; for, as a bill of revivor, 
it is undoubtedly good. A bill may be filed with different aspects, that if 
one fail, the other may as effectually answer the purpose for which the bill 
was brought. 2 Atk. 325.

6. The complainants are properly joined as parties. Mitford’s Plead., Eng. Ed. 
74; 4 Cowen, 682; 5 Johns. Chan. Rep. 267.

7. The issue found by the jury of devisavit ve1 non, and the decree thereon, 
are not conclusive, under the provision of the statute applicable to the will 
1821. Because, 1. The infant, Eliza L. Calvit, was not a party to the 
proceeding. It does not appear that she was served with process. It is true, 
her guardians appeared, and filed their answer. This, without a service of 
process on her, is not sufficient. There should have been a service of process 
on the infant and guardian. 2 Munf. 129; 4 Yerger, 318; Ibid. 231; Chitty’s 
Eq. Dig. 540.

This first objection applies as strongly to the final decree as to the issue 
found by the jury.

2. The statute which must govern the issue found by the jury, is to be found 
in Turners Dig. p. 447, sect. 34.

By this statute, the verdict upon an issue devisavit vel non, is not made 
final and conclusive. The will of 1821 was probated previous to the month of 
November, 1821, the month in which the provision in the Revised Code upon the 
subject was passed.

The chancellor who pronounced the decree, did not esteem the verdict 
conclusive—hence, the nisi clause in his decree.

8. The specific prayer of the amended bill is objected to; whether the 
specific prayer be consistent with the bill is not material. There is a prayer 
for general relief. If a bill, besides the usual prayer for general relief, 
contain a prayer for specific relief, the complainant is entitled to other 
specific relief, so far as it is consistent with the case stated in the bill. 
1 Johns. Chan. Rep. 111.

9. Actual or seisin in deed by the ancestor, is not esteemed necessary in this 
state, to transmit an inheritance to an heir. The common law rule is not 
regarded, but seisin in law is all sufficient. This has been the received 
notion, by universal consent or usage, coeval with the existence of the 
territorial and state government. The word seisin has been regarded as meaning 
no more than "owning" or "entitled to." 8 Cranch, 229; Ibid. 248; Walker's 
Introduction, 324; 4 Mason, 447.

10. An infant has the right preserved by the law to show cause against a 
decree, (although he may have passed the age of majority, for many years since 
the decree,) up to the time of service of subpoena upon him to show cause. 
Chitty’s Eq. Dig. 540.

Winchester, contra.

1. The demurrer ought to have been sustained, and the bill dismissed, because 
it is an original bill, claiming under Lucretia Calvit, in the name of her 
administrator and heirs, a right to half of all the real and personal property 
of Thomas Calvit, deceased, undisposed of by the will of 1821, against Sarah 
Calvit, and Wood and Hunt; when in this very bill it appears that, in a former 
suit between Lucretia Calvit, by said Wood and Hunt, her guardians, 
defendants, and said Sarah Calvit, complainant by revivor, the very same real 
and personal property was decreed to be the property of Sarah Calvit.

A decree, signed and enrolled, is final and conclusive, as to all parties and 
privies, upon the matters in issue, and embraced in the decree, and cannot be 
collaterally inquired into, or impeached in another suit for the same matter 
between the same parties or their privies, except for fraud; but only by a 
bill of review for errors apparent, or facts discovered since the decree, or 
by appeal for erroneous judgment.

If not signed and enrolled, it can only be impeached by a supplemental bill, 
in nature of a bill of review, and which can only be for facts discovered 
since the decree. 3 Ves. 386; 13 Ibid. 564; 3 Atkyns, 811; Ibid. 629; 2 
Maddock, 535, 537, 538; O’Brien v. O’Connor, 2 Ball & Beatty, 154; 1 Atkyns, 
290; 3 Johns. Chan. Rep. 275; 4 Ibid. 85; 7 Ibid. 164; 6 Ibid. 235; 2 P. Wms. 
Rep. 73. Bill of review is never answered, but demurred to. Fraud is the only 
ground of exception, either of judgments at law, or decrees in equity, and 
whether the judgment or decree be against infants or adults. The very giving 
an infant a day in court to show cause, shows they form no exception to the 
rule.

The note in 1st P. Williams, copied into Blake’s Chancery, is not authority. 2 
Comyn, 414; 3 Vesey, 386.

2. But even if a decree might be impeached for error apparent, or erroneous 
judgment, in an original suit for the same matter, yet the demurrer here ought 
to be sustained, and the bill dismissed, because it seeks to impeach the 
finding of a jury, and the probate of a will, upon an issue out of chancery of 
devisavit vel non, which our statute makes final and conclusive, without any 
saving to infants. 3 Atkyns, 629; 1 Vern. 295; 1 Ves. Jun. 283; Rev. Code, 32; 
2 Comyn, 634; Eq. Cases, 138; Ibid. 128.

3. The demurrer ought to be sustained, and the bill dismissed; because, as 
originally filed, William Scott, in his statements in the bill, claims the 
undisposed real and personal property of J. Calvit, by a title in him as 
administrator of Eliza L. Calvit; and an amended bill making new parties, 
could not state a new case different from that in the original bill, and in 
fact it does not, as it adopts the prayer of the origina1 bill, "that 
defendants may come to an account with William Scott, as administrator as 
aforesaid, for the property claimed by him as aforesaid." A bill cannot, by 
amendment, make a new case. 1 Johns. Chan. Rep. 184.

4. The demurrer ought to be sustained, and bill dismissed; because, if the 
third ground be otherwise construed, then the administrator of Lucretia 
Calvit, could not join as complainant for the personal property against Wood 
and Hunt as executors, and Sarah Calvit, along with the heirs of Lucretia 
Calvit, for the real property.

"The things sued for are of distinct natures, and their interests several and 
disconnected." 2 Comyn, 694; 2 Maddock, 176, 177; Ibid. 175; Ibid. 292, 294; 4 
Johns. Rep. 204; 4 Cowen, 682; Fonblanque, 236, note.

5. The demurrer ought to be sustained, and bill dismissed; because, Hunt and 
Wood are made parties, defendants, and are called upon to make a discovery and 
account, as executors of Thomas Calvit, for all the undisposed residue, real 
and personal, in which they are nowhere charged with having intermeddled; and 
for which, as guardians, a decree was rendered against them as is shown by the 
bill. 2 Maddock, 292, 294; 4 Johns. Rep. 2O4.

The demurrer ought to be sustained, and bill dismissed; because, there are no 
errors apparent upon the face of the decree, for which the decree could be 
opened upon a bill of review. 2 Maddock, 537, 538; 2 Comyn, 694.

7. The demurrer ought to be sustained, and bill dismissed; because, 
complainants are not the next of kin of Eliza Lucretia Calvit, according to 
the true meaning of our statute, and the rules of common law descent.

Mr. Justice TROTTER stated the case and delivered the opinion of the court.

1. The first objection which is made by the appellants to the judgment of the 
court below, is, that a first demurrer had been overruled, and therefore it 
was error to entertain a second one to the same bill. The judgment of the 
chancellor, which overruled the first demurrer, was, until reversed in the 
regular method, conclusive and binding, as much so as when pronounced upon any 
of the other questions which might arise in the cause, and it was, therefore, 
assuredly irregular to sustain the second demurrer, if it rested upon the same 
ground, and applied to the same proceedings. But there was an amendment which 
entirely changed the parties to the original bill, as well as the grounds of 
relief. In the original bill, the administrator alone sought to impeach the 
decree complained of. In the amended bill, the heirs at law are made 
complainants. Now it is certain that the grounds of relief are much widened by 
this amendment; as the administrator could only recover the personal estate, 
whereas the heirs seek the real estate, and the rents and the forfeits. The 
amended bill was, therefore, materially variant from the first, and we are of 
opinion that it was competent for the chancellor to entertain the second 
demurrer, if the new matter introduced by the amendment, was objectionable. 
Was it so? We think it was, and that, according to well established principles 
in pleadings in chancery, the heir cannot join the administrator in an 
original bill for relief and for an account of personal estate, and of the 
rents and profits of land, or for the delivery of the title papers of real 
estate. There is no rule better settled than that the personal property of an 
intestate belongs to the administrator, and that the lands belong to the heir. 
The administrator cannot, therefore, sue for the land, nor can the heir 
maintain an action for the goods of the intestate. Have the parties upon the 
record in this case, a joint interest in the whole subject matter of the suit? 
Unquestionab1y they have not. If the heirs were to die pending this action, 
who is there upon the record to represent their interests? These principals 
have been repeatedly acted upon by the courts of chancery. In the case of Dunn 
v. Dunn, 2 Cond. Eng. Chan. Rep. 440, the complainant, who was an only son, 
and one of the heirs of the intestate, united with his sisters in a bill 
against his mother, who was the administratrix, for an account of the 
intestate’s real and personal property, and a demurrer for multifariousness 
was allowed. In Maud v. Acklom, in the same book, p. 441, the same principle 
was recognised, and the demurrer allowed. The counsel for the appellants, in 
answer to this objection, has referred us to the case of Fellows v. Fellows, 4 
Cowen’s Rep. 682; but that case settles no principle which conflicts with the 
views already presented. The court expressly recognises the general rule that 
a demand in the same bill of several matters, distinct and different in their 
nature, against several defendants, cannot be allowed. That case was held not 
to be embraced by this rule, because the defendants, though unconnected, had a 
common interest centering in the point in issue in the cause. In that case, 
the point in issue was the fraudulent combination of the defendants with the 
debtor of the complainant, to protect the property of the debtor against the 
claim of complainant, by a fraudulent purchase. The debtor had sold separate 
portions of the property to several distinct persons, and the creditor made 
them all defendants, and the court held that they were jointly answerable, 
because they had a common interest in the point in controversy. And this is 
the only effect of the determination of the court, in the case relied on in 5 
Johns. Chan. Rep. 267; and was made, in part, the ground of the decision in 
the case in Cowen. We decided this question in the case of Browder v. 
Carmichael’s Adm’r, at the present term, and we are satisfied with that 
determination.

Under this view of the case, we might content ourselves with an affirmance of 
the decree of the court below, without noticing the other grounds urged in 
support of the demurrer. But with a view of settling the merits of the cause, 
we will proceed to consider the principal objection to the present proceeding. 
It is urged that the decree of the court of chancery, which established the 
will of 1818, as the last will and testament of Thomas Calvit, under which 
Samuel Calvit derived his title to the whole of the property now claimed by 
the heirs of Lucretia Calvit, and which was founded on the verdict of a jury 
on the issue of devastavit vel non, is conclusive and binding upon all the 
world; and can never be impeached or inquired into in a collateral proceeding, 
or in any new proceeding between the parties. In answer to this objection, it 
is insisted that Eliza L. Calvit was an infant when that decree was 
pronounced, and is consequently not bound by it absolutely, but is entitled to 
show cause against, or to impeach it, and that by an original bill. There can 
be no doubt that, in every correct decree against an infant, there is a nisi 
causa clause, and that the infant may, either before, or within six months 
after arriving at age, be permitted to file a new answer, to impeach it by an 
original bill in the nature of a bill of review. The case of Casen v. 
Johnston, 1 Peere Williams, 736; is a full authority for this position. That 
was the case of a decree against a person who was insane, and therefore 
incompetent to put in an answer, or protest his rights. The chancellor 
permitted him to show cause against the decree, and to impeach it, because it 
was manifestly unjust and fraudulent; and he remarks, generally, that the way 
for an infant to investigate a decree which has been erroneously rendered 
against him, and when the error is not in the judgment of the court, but in 
the facts on which it was obtained, is, to file an original bill. It is, 
therefore, competent for an infant to proceed by original bill in a proper 
case for setting aside a decree improperly obtained. But it is said by the 
counsel for the appellees, that the verdict and decree in this case, take it 
out of this general rule, and that it is binding even upon infants. It will be 
proper, therefore, to consider what is the effect of a decree such as this? 
The 29th sect. of the orphans’ court law, Rev. Code, p. 35, provides, that 
when any will shall be exhibited to be proved, the court having jurisdiction 
thereof, may proceed immediately to review the probate thereof, &c. If, 
however, any person interested shall, within five years afterwards, appear, 
and by his or her bill in chancery, contest the validity of the will, an issue 
shall be made up, whether the writing produced be the will of the testator or 
not, which shall be tried by a jury, &c., whose verdict shall be final between 
the parties. The only saving in this section of the act, is a power in the 
court to grant a new trial, and a right to infants, &c., to contest the 
validity of the will in the manner prescribed, the like period of five years 
after the removal of their respective disabilities. Adults, then, have five 
years allowed them after the probate of the will; and infants five years after 
they arrive at age, to contest the validity of the will.

There is much reason why the verdict in this case should be final against all 
persons. It is to suppress interminable litigation, and to give repose and 
security to titles, and therefore it is held in England, that when the will is 
established by a verdict on the issue devisavit vel non, the court of chancery 
will declare it well proved, and that it ought to be established, and will 
grant a perpetual injunction. 11 Vez. 50, 52; 19 Vez. 499; Story’s Equity, 673.

In the Ecclesiastical courts in England a decision upon the probate of a will 
of personal property is held conclusive to the full extent to which it has 
been admitted to probate. And it is also held to be not traversable but 
conclusive evidence of the will. With us, courts of probate have equal 
jurisdiction over a testament of personal and a will of real property. Our 
statute makes the probate of the will conclusive evidence, and will not suffer 
it to be contested after four years, or, in the case of an infant, after five 
years from the removal of his disability. And it must be evident that where 
the validity of the will is contested, in the manner pointed out by the act, 
either before or after probate, the decree is absolute against all persons. 
This was the view taken of the statute of Virginia, which is precisely in 
principle like ours, by the court of appeals in the case of Naile v. Fenwick, 
4 Rand. Rep. 588. Seven years is allowed by the act of Virginia to contest the 
validity of the will after probate, and if it is not done within that time, it 
is held conclusive forever. But there is no distinction, and there cannot from 
the very nature of the act be any distinction between adults and infants. The 
case of Hodges et al. v. Bauchman, 8 Yerger’s Rep. 186, is a direct authority 
for the views here taken. That was a controversy respecting the validity of a 
will which had been admitted to probate in the county court of Sullivan county 
in Tennessee according to the provisions of the act of 1789 of that state. 
When the will was presented for probate, one of the heirs at law of the 
testator objected to its validity and at his instance an issue was made up 
according to the act of assembly to try the question. The issue was tried and 
found in favor of the validity of the will. Afterwards another of the heirs 
filed his petition setting forth the fact that he and about twenty others were 
the heirs and distributees of the testator, and prayed that he on his own 
behalf and as guardian for five minors who were interested might be permitted 
to contest said will, and alleged that they had not been heard when it was 
admitted to probate. The executor pleaded the judgment of the county court on 
the issue of devisavit vel non, and the question submitted to the court was, 
whether this decision admitting the will to probate was binding upon the heirs 
who were not parties to the issue? It was decided in favor of the validity of 
the will. A writ of error was prosecuted, and the Supreme Court of Tennessee 
affirmed the decision of the court below. Judge Catron who delivered the 
opinion of the court observed that the question was, whether the verdict and 
judgment of the court of pleas and quarter sessions was conclusive upon all 
parties or only upon such as appeared in court and caused the issue to be made 
up. He says the proceeding is in rem; the probate is evidence of title without 
reference to parties. He says, and says truly, that the executor would be 
involved in interminable litigation, if every person interested in the estate 
could have a separate issue. It is essential to the practical efficiency of 
the courts of ordinary that their judgments in cases of probates should be 
binding in all courts, and if it were otherwise it might happen that some ten 
or twenty years after the trial, and after a distribution was had, their 
titles might be upturned. The act of assembly of Tennessee does not speak of 
parties, and the court in the case referred to, state that no such idea 
entered into the mind of the legislature. It is the duty of the court of 
probate to ascertain whether the will has been duly executed without referenee 
to individuals interested. The probate is a proceeding for the ends of 
justice, of a public nature and conclusive on the whole world. This position 
is fully sustained by the cases referred to in the text in 1 Starkie’s Ev. 
241; where the rule is stated to be that the sentence or decree of a court of 
ordinary and probate, provided it be final in the court in which it is 
pronounced, is evidence against all the world, unless it can be impeached on 
the ground of fraud and collusion. It was insisted by the counsel for the 
appellants that the issue and decree founded thereon is not binding, because 
by the act of the legislature as it is found in Turner’s Digest, p. 447, sect. 
34, and which is the statute which must govern this question, the same is not 
made binding and conclusive. The act referred to is in nearly the same 
language with that in the Revised Code, and though it does not by express 
enactment make the decree final, yet it is as much so upon the general 
principles which govern such decrees as if there had been an express provision 
to that effect.

The decree of the chancellor must therefore be affirmed, with costs to the 
appellees.


Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

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