
    Hamilton vs. Berry, &c.
    APPEAL PROM BATH CIRCUIT.
    1. It is not authoritatively decided in the case of Rogers w. Thomas, 1 B. Monroe, 393, that one who has contested a will before the county court, shall not thereafter contest it by bill in chancery in the circuit court.
    2. Shall one who has been a party opposing the probate of a will in the county court, be barred thereby from filing a bill in the circuit court, to contest the will under the 11th section of the act of 1797 — CJuere.
    3. One should not be considered barred, who had been only’once named in the record as a party, when the whole record showed, that others had been the conductors of the opposition throughout.
    Case 11.
    June 20.
    Case stated.
   Judge Marshall

delivered the opinion of the court.

A paper purporting to be the will of Eliza Ann Hamilton, having been admitted to record in the Bath county court, after a contest in that court,-the case upon the probate, was carried to the Bath circuit, court, by appeal, and that court determined that the instrument was valid, and should be recorded as a will of personalty, but not as a will of land or slaves. From that decision, Berry, the executor, appealed to this court, where it was decided that the will was valid, and sufficiently proved for all purposes, and the case was remanded to the circuit court with directions to affirm the judgment of the county court establishing the. will and admitting it to record. The opinion, of this court, reported in 10 B. Monroe, 129, is referred to, as showing the facts respecting the will and its execution, also the nature of the contest, and the principles of the decisions then made.

The case referred to was decided in this court, in January'1849, after a litigation bf about three years, and after two trials, in which numerous witnesses were examined, and in one of them a bill of exceptions was taken, by which the testimony was brought up to this court.

Since the will was established by the mandate of this court, viz: in October, 1851, George Hamilton, one of three brothers of Eliza Ann Hamilton, who with their mother, were her only heirs, filed this bill in the Bath circuit court, claiming to contest the validity of the will by bill in chancery, under the 11th section of the act of 1797, Stat. Law.

To this bill, John Berry, the executor, and Rebecca Hamilton, the mother, and James and Archibald W. Hamilton, brothers of the testratrix, were made^ defendants, and Berry, together with an answer, filed a plea in bar, averring and relying upon the fact, that in the proceedings as above referred to for proving the will, George Hamilton was a party opposing the probate. And, as conslusive evidence of his having been a party, it states, that at the February county court, 1845, of Bath county, a writing purporting to be the will, &c., was produced in said court and ordered to be filed; and at the same term, on motion of complainant, and James and Archibald W. Hamilton, the proof of the will was continued until the next term; and alleging that the complainant thereby became a party to the controversy contesting the will in said county court, and that said order continues in force and unrevérsed; it avers that the record thereof is conclusive against the matters and charges in complainant’s bill, and the same is thereby forever barred, said will being afterwards, viz: at the - term of said court duly admitted to rec'ord, &c. The plea further avers, that in the contest and litigation respecting the validity" of said will in the county and circuit courts of. Bath county, the complainant did, in fact, oppose and resist the establishment and recording of said will, by testifying against the validity thereof as a witness.

3. It is not authoritative! y decided in the case of Rogers B. Thomas, 1 B, Monroe, 393 that one ivho has contested a will before the county court, íihall not thereafter contest it by bill in chancery in the circuit court.

The case came on for hearing upon the plea, that is, upon the bill, the record therein referred to and filed, as showing the proceedings upon the probate in the county and circuit courts, and the plea itself; and it is proper to state that the complainant referring in the bill, to the order of continuance relied on in the plea, says he is informed that he is named in said order as joining with his brothers in the motion, and that his name is afterwards dropped, but that both the insertion and discontinuance of his name, were without his knowledge or authority; that he never appeared as a party opposing the will, was not a party in the case, but on the contrary, was a witness in each of the lower courts, &c.

1 he court regarding the plea as presenting a sufficient bar, dismissed the complainant’s bill, and dissolved the injunction which he had obtained against the qualifying of John Berry as executor.

The sufficiency of the plea, to bar the complainant from contesting the validity of the Will by bill in chancery, depends upon the question whether the 11th section of the statute of 1797, which gives this remedy for contesting the validity of a will which has been admitted to probate, withholds it from every person who may have appeared in the county court as a party contesting the probate. And whether, if such be the true construction "of the statute, the record from the Bath county court, contains such evidence of the complainant’s appearance in that court, as a contestant, or as a party to the contest, as should be deemed sufficient to preclude him from this remedy.

The 11th section of the act of 1797, Stat. Law, 1543, after providing for the immediate probate of the will when offered in the proper county court, proceeds to say — “if however, any person interested sha! 1, within seven years afterwards, appear, and by bis bill in chancery, contest the validity of the will, an issue shall be made up, &c.” In the case of Rogers v. Thomas, 1 B. Monroe, 393, this court in commenting on this 11th section, seem to regard the statute as referring to such person only as had not before appeared and contested the will. The inference from which would be, that a person who had appeared and contested the will, was not authorized to file the bill to contest it in chancery. What was said on this clause in the case referred to, cannot, however, be regarded as an authoritative judicial exposition of the statute, because the question was not presented, whether a contestant in the county court might, after being there defeated, renew the contest by a bill in chancery. The framers of the act of 17.97, probably did not contemplate any contest upon the presentation of the will for probate in the county court, and may have looked to the filing of the bill as the first act of opposition. But experience has proved, that where the persons who consider themselves interested against a will have the opportunity, they generally commence the contest at the earliest stage of the probate. Such was the ease before the enactment of the statute of 1842, by which the appeal was given to the circuit court in cases of probate. And, yet, the proviso to the third section of that act, 3 Slat. Law, 586, seems to indicate that the legislature understood or intended, that any person interested, who was not a party served with process, and did not appear by himself or counsel in the circuit court, might contest the validity of the will as provided in the 11th section of the act of 1797. True, this is not the necessary inference from the proviso, nor can it be conclusively inferred from the language of the 11th section that a simple appearance in the county court in a ease of probate, should absolutely preclude the party from contesting the will in chancery. The dictum in the case of Rogers v. Thomas, implies that the remedy is withheld, not from one who has merely appeared before, but from, such as have appeared and contested the will .before, that is, in the ordinary course of probate. Commonly, indeed, to appear in court, in a case there litigated, means to assume, the attitude of a contestant, to make oneself a party to the litigation, and to take a position which makes the proceeding and decision justly obligatory and conclusive. If, therefore, it be assumed that the reference in the 11th section to a future appearance and contesting of the will, implies a negation of a prior appearance, it is doing no violence to say that the prior appearance intended, is an appearance as a contestant, which would give to the clause the interpretation intimated in the opinion just cited.

2. Shall one who has been a party opposing the probate of a will in the county court, be barred thereby fr«m_ filing a bill in the circuit court to contest the will, under the lllh section of the act of 1797. Quere.

But the words, “if however, any person interested shall within seven years afterwards appear, áse., do not necessarily import a negation of any prior appearance. They may refer to an appearance in the court of chancery, to file the bill. In Virginia, it is true, where this clause of the statute wás first enacted, the county court in which the will may have been first offered for probate, was the court in which the bill was to he filed. And in view of this fact, the reference to a future appearance in the same court, may have been intended to denote a first appearance in that court, and thus to negative any prior appearance in the course of the probate. But, if, as the court in Rogers v. Thomas, supra, assumes, and as the first clause of the 11th section seems to imply, the legislature contemplated a probate in the first instance without contest, and in this view, provided for an. original contest by bill in'chancery, it by no means follows that if they had contemplated a contest in the first instance, they would have prohibited the renewal of the contest in a more solemn arid certain form; and it is by no means certain that they intended that a person who should in the first instance, when perhaps he was not fully prepared, contest and attempt to prevent the probate, should be thereby precluded from resorting to the remedy by bill. Much less is it to be assumed, that the slightest possible indication of hostility to the probate in the first instance, was intended by the framers of the statute as a bar to any further contest by the same person. Butin our system of judicature, the county courts did not have chancery jurisdiction when this statute was adopted. And the same words, which in the Virginia statute, refer to and authorize the filing of a bill in the county court in which the probate had been first made, are, and always have been understood in our statute, as referring to and authorizing the filing of a bill in a different court, that is, in the circuit court. If, therefore, an appearance in a judicial proceeding, means the first coming of the party into court in that proceeding, and, if therefore, there be an apparent incongruity in applying the words — “if any person shall after-wards appear and file his bill,” to one who had previously appeared in the same court, .and upon the same question, which may be the case in Virginia, there is no incongruity in applying the same words to one who has appeared in the county court upon the question of probate, and afterwards files his bill in chancery to contest the same will. For his appearance in the county court, is no appearance in the circuit court. And when he files his bill there, he then appears or comes for the first time in that court.

But further than this, if we pursue the technicalities of the subject, we percieve, that upon the termination of the contest, if there has been one in the county court, that is, upon a judgment being pronounced for or against the will, the parties, after the expiration of that term, are out of court, and the contest can only be renewed by some new' proceeding, in the institution of which, w'hether in the same or another court, the party moving comes into court for the first time in that proceeding, and may be properly said to appear, even in the most narrow and technical sense of that word.

It may be said, that if the %vord “appear,” in this clause, means nothing more than coming into court, that is fully implied by the other words of the sentence, as in filing his bill he must come into the court. But although the word in this sense may not have been necessary, it is neither insensible, inappropriate, nor untechnical. And the mere fact, that in that sense it was unnecessary, and might have been dispensed with, is no sufficient reason for giving to it a sense beyond its natural import, by which it is to be made the governing word of the sentence by which important rights are to be peremptorily determined. The rule requiring that every word of an instrument shall, if possible, have some effect, does not require it to be assumed that the writer has expressed his ideas in the fewest possible words, and, therefore, that every word which in its ordinary sense does not change or qualify the import which the sentence would have without it, must be understood in some different or extraordinary sense, in order to give it effect. Although the statement that a person does a particular act in court necessarily implies that he appears or comes into the court, both facts, that is, the appearance or coming into court, as well as the act done, are frequently, perhaps commonly stated in making up the record of the proceeding. So far then as the mere language of this section is to be considered, we perceive no necessity nor sufficient l’eason for giving to the word ‘appear,’ any retrospective meaning or operation, or any decisive influence in excluding a party who had appeared in the county court, in the proceeding for probate, from appearing by bill in the circuit court, to contest the will. And the section may well be interpreted as if its words were, “if however, any person interested shall, within seven years after the probate in the county court come into, or appear in the circuit court, and file his bill in chancery, contesting the validity of the will, &c.” And, although, under this interpretation, the word “appear,” would express only what would be implied without it; this does not seem to be so great an objection as that to which the opposite construetion is liable, viz: that it gives to the word ‘appear,’ a force and meaning greatly beyond its natural import, and not necessarily to be implied from its use in she sentence.

3. One should not be considered barred who had been only once named in the record as a party, ■when the whole record showed that others had been the conductors of the oppos ition throughout.

Considering this section as we should, With reference to our own system of judicature, it is only by going behind the language, and considering not merely the objects of this enactment, but also the expediency and justice upon general principles of holding a person who has once been a party participating in a regular litigation, as forever afterwards bound by the result, that we find any just or sufficient ground for the inference, that the legislature intended to exclude from the remedy, by bill in the circuit court, every person who had been a party contesting or opposing the will in the county court. But these principleá, although as admitted, they may furnish proper and sufficient grounds for extending the constructive effect of the statute further than its words require, must also suffice to restrict this constructive operation within the limits prescribed, by justice and expediency. And, although, if under these principles, the statute might, or should be construed, as giving the remedy by bill in chancery to such persons only as had not appeared and contested the will in the county court, we are of opinion, that in order to exclude a person interested from the remedy by bill in chancery, on the ground now in question, it is not sufficient that the record of the county court shows, that on a single occasion, at the very commencement of the proceeding, his name is united with those of others who afterwards opposed the will, in a motion for continuance, while the same record shows'through a series of subsequent orders, that he was not after-wards regarded as a party, and never acted as such in court, but that the other persons with whom he had been first named, acted and were treated throughout by the propounder of the will, by the court, and by all concerned as the sole contestants. The bill, as already stated, alleges that the complainants name was inserted without his authority or knowledge, In the order stating the motion for a continuance of this proof or probate, upon the first presentation of the will. And it might be inferred from the entire subsequent record, that the clerk alone was apprized of the fact. All subsequent motions and proceedings on the part of the contestants, are in the name of James and A. W. Hamilton alone. The case is entitled as between Berry and them alone. They alone prayed the appeal to the circuit court, and are alone mentioned as appellants in the appeal bond, while George Hamilton, the present complainant, was examined as a witness on the part of the contestants, which, if he had been considered a party, could not have been done but by consent, which does not appear. He was also examined in the circuit court; and in the bond executed by Berry, to supercede the judgment of that court, and bring the case hers, James and A. W. Hamilton alone are mentioned as obligees, and as constituting the opposite party, and there is no pretence that George Hamilton was a party in this court.

Besides other questions, it may be asked if he was a party in the county court, how did he get out of the case so as to be a witness, so as not to be a party in the circuit court, or in this court. The fact is, the order which alone is relied on to prove his appearance as a party, is equivocal, or at least not conclusive as to the attitude then assumed by the movers of the continuance. It is no formal entry of opposition or of appearance, as parties contesting the will. The motion may have been made for the purpose of determining whether to contest the will or not. And although the subsequent orders and proceedings show conclusively that James and A. W. Hamilton did contest the will most strenuously, there is nothing either in or out of that record, to identify the complainant with them in that contest. His testifying for them as a witness was inconsistent with his being a party. And this, with the other facts apparent on the record, tend to prove that he was not a party.

Robertson and Davis for appellant; Farrow for appellee.

The question now is, whether the record contains such evidence of the complainant’s having been a party contesting the will in the county court, as to preclude him from his remedy in chancery, even upon the construction intimated in Rogers v. Thomas. And although it is certainly true, that he had full opportunity of becoming a party, and contesting the will, yet as it does not appear that he united in the contest either as a party in court, or by arrangements or steps taken out of court, we cannot, upon the case now before us, say that he is excluded from the terms of the statute, or from the remedy which it gives. We are not called on to decide what might be the effect of facts not alleged in the plea.

Wherefore, the decree dismissing the bill is reversed, except in so far as it dissolves the injunction; and the cause, except as to the injunction, which was properly dissolved, is remanded for further proceedings.

Cox for plaintiff; Harlan for defendants.  