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§ 1313. The Same Subject: Limited to Particular Property. A will may be valid insofar as it disposes of personalty, but invalid as to realty. This may arise in connection with nuncupative wills, or in those jurisdictions where wills of personalty may be made at an earlier age than wills of realty, or where the formalities prescribed for the execution of wills of personalty and of realty are different, or where the testator after executing the will sells or disposes of real property which he had specifically devised in his will. If the will is valid as a testamentary disposition of any property, it may be admitted to probate but be limited to the property which it affects.23 § 1314. The Same Subject: Excluding Defamatory Matter.

Scurrilous, scandalous, or defamatory matter contained in a will and not affecting the disposition of property, may be excluded from probate, or at least expunged from the record. 24 The right of a court, however, to admit a will to probate in part does not authorize a court to add provisions to the will or to alter its meaning. A will is the final expressed intent of the testator, not of the court, and the court has no authority to exclude any portion of a will which is necessary in order to properly construe the will and determine the testator's intent.25

ton v. Robins, 3 Phillim. 455, n. (b).

23 Lake v. Warner, 34 Conn. 483; Deane v. Littlefield, 1 Pick. (18 Mass.) 239; Fatheree v. Lawrence, 33 Miss. 585.

An instrument may in part be effective both as a deed and as a will. See 60.

24 Marsh v. Marsh, 6 Jur. N. .S. 380, 1 Sw. & Tr. 528; Goods of Honywood, L. R. 2 P. & D. 251; Goods of Wartnaby, 1 Rob. Ecc. 423.

25 Goods of Durlacher, 75 L. T. N. S. 664; Ramsey v. Welby, 63 Md. 584.

CONTEST OF WILLS AND JURISDICTION OF COURTS.

§ 1315. How and when validity of wills may be contested.

§ 1316. Jurisdiction of probate court to modify or vacate its

decrees.

§ 1317. Admission of will to probate does not preclude probate court from admitting a later will.

§ 1318. The same subject: Procedure.

§ 1319.

Courts of equity have no inherent jurisdiction in probate matters.

§ 1320. Courts of equity may be vested by statute with probate

jurisdiction.

§ 1321. Construction of statutes giving courts of equity jurisdic. tion to hear will contests.

§1322. The same subject: Such statutes are special.

§ 1323. The same subject: No right of contest after time limited by statute.

§ 1324. Time within which contest must be instituted.

§ 1325. Who may contest will.

§ 1326. The same subject: Executors, public administrators, creditors, or the State.

§ 1327. Estoppel to contest will: Acceptance and retention of

benefits.

§ 1328. The same subject: Effect of an agreement, release, or

appearance.

$ 1329. Objections to probate and petition to revoke letters not

involving validity of will.

§ 1330. Grounds upon which validity of wills may be contested. § 1331. Pleadings in will contests.

§ 1332. Trial by jury.

§ 1333. The same subject: What, issues submitted to jury.

§ 1334. Costs of obtaining letters testamentary or of administra

tion where not contested.

§ 1335. English rule as to taxation of costs in will contests.

§ 1336. The same subject: Illustrations of the rule.

§ 1337. American decisions as to costs and expenses in will contests: Points to be considered.

§1338. The same subject: Conflicting decisions.

§ 1339. Effect of revocation of letters testamentary or of administration: Duty to account.

§1340. The same subject: Validity of prior acts.

§ 1341. The same subject: Production of later will.

§ 1315. How and When Validity of Wills May Be Contested.

The validity of a will may be contested in various manners and at different times. Where the strict English rule as to proof of a will in common form and in solemn form prevails, a will can only be contested prior to its admission to probate in solemn form. It is when the will is presented for proof in solemn form that its validity may be questioned by interested parties. This procedure has been fully set forth in the preceding chapter.1 The practice in America, as has before been shown, follows no universal rule.2 In all cases those entitled to contest the will may appear when the same is offered for proof and set forth their objections to its admission.3 Issues are framed and the will is not to be admitted until after the contest is determined or dismissed. However, it is generally provided by statute that although a will has been once admitted to probate, its validity may thereafter be questioned within a limited time by interested parties. Such a contest is generally instituted in the court wherein the will was originally proved; in some jurisdictions, however, the courts of chancery, or those of ordinary law and equity jurisdiction, may hear and determine suits as to the validity of wills which have theretofore been proved in the probate courts.

1 See §§ 1291-1295.

2 See § 1296.

III Com. on Wills-13

3 As to forms for contesting wills, see Appendix, Part Two, No. 36, this volume.

§ 1316. Jurisdiction of Probate Court to Modify or Vacate Its Decrees.

5

Independent of statute, courts exercising probate jurisdiction have the authority to correct, modify and vacate orders and decrees entered during the term in which they are made. This may be done after notice to all interested parties so that they may have an opportunity to be heard. Even at a subsequent term the probate court may correct manifest errors and mistakes in a former order or, decree when it can be done without prejudice to any person who has acted upon the same. The same rule applies to orders or decrees which are void on the face of the record because of lack of jurisdiction or failure of compliance with statutory requirements. But it is a general rule that mere irregularities which do not render the order or decree void but merely voidable, and which errors may be corrected on appeal or by a suit in equity, do not empower the probate court at a subsequent term to vacate such an order or decree. The rule last men

4 Thomas v. Dumas, 30 Ala. 83; Peake v. Redd, 14 Mo. 79; Rottmann v. Schmucker, 94 Mo. 139, 7 S. W. 117.

The power of a probate court to modify or vacate its decrees is often regulated by statute which enumerates the matters regarding which the court may so act.Estate of Cahalan, 70 Cal. 604, 12 Pac. 427; Delehanty v. Pitkin, 76 Conn. 412, 56 Atl. 881; Matter of Hawley, 100 N. Y. 206, 3 N. E. 68; In re Bradley's Will, 70 Hun (N. Y.) 104, 23 N. Y. Supp. 1127.

In some jurisdictions a court of probate has no power to set aside a decree admitting a will to pro

bate where the statute prescribes a different remedy. - Taylor v. Tibbatts, 13 B. Mon. (52 Ky.) 177; Corby v. Durfee, 96 Mich. 11, 55 N. W. 386.

5 Bergeron, Appeal of (Estate of Cote), 98 Me. 415, 57 Atl. 584.

The ordinary has the authority to revoke an order of his predecessor admitting a will to probate.-Gibson v. Brown, 1 Nott. & McC. (S. C.) 326.

6 Sowell v. Sowell's Admr., 40 Ala. 243; Laird v. Reese, 43 Ala. 148; Waters v. Stickney, 12 Allen (Mass.) 1, 90 Am. Dec. 122.

7 Chamblee v. Cole, 128 Ala. 649, 30 So. 630; Pisa v. Rezek, 206 IIL

tioned, however, does not apply generally to a decree which was secured through fraud or mistake if the rights of innocent third persons acting under the decree are not prejudiced by its annullment. Thus an order admitting a will to probate, procured by fraud or misrepresentation, or made under mistake, may be revoked; likewise where the will has been admitted without sufficient proof of due execution or testamentary capacity.10 This, however, does not permit the probate court to revoke and set aside decrees because of errors in matters of law.11 The right of a court of probate to set aside its orders or decrees is a power which is equitable in its nature. In order to justify a court of probate to set aside an order admitting the will and granting letters testamentary, the party attacking the order should show not only that it was secured through fraud, accident, or mistake, or without the legal proofs required by law, but he should also show some substantial equitable ground why it would be inequitable and unjust to allow the order which he attacks to stand, and that he was prevented from availing him

344, 69 N. E. 67; Hitchcock v. Genesee Probate Judge, 99 Mich. 128, 57 N. W. 1097; Merrick v. Kennedy, 46 Neb. 264, 64 N. W. 989; Leavins v. Ewins, 67 Vt. 256, 31 Atl. 297.

Where a will has been admitted to probate by the registrar of wills, his authority in that particular matter is terminated and he can not revoke the order.-McAndrew's Estate, 206 Pa. St. 366, 55 Atl. 1040.

8 Chicago v. Nodeck, 202 Ill. 257, 67 N. E. 39; Cousens v. Advent Church, 93 Me. 292, 45 Atl. 43;

Montgomery v. Williamson, 37 Md. 421; Gale v. Nickerson, 144 Mass. 415, 11 N. E. 714.

9 Wright v. Simpson, 200 I11. 56, 65 N. E. 628; Worthington v. Gittings, 56 Md. 542.

10 Garner v. Lansford, 12 Sm. & M. (Miss.) 558; Murray v. Murphy, 39 Miss. 214; Gordon v. Old, 52 N. J. Eq. 317, 30 Atl. 19; McGuire v. Kerr, 2 Bradf. (N. Y.) 244; Dobke v. McClaran, 41 Barb. (N. Y.) 491.

11 Matter of O'Neil, 46 Hun (N. Y.) 500; Matter of Hawley, 100 N. Y. 206, 3 N. E. 68.

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