Dillard v. Dillard's Ex'or

Citations

• 78 Va. 208
• 1883 Va. LEXIS 29

Syllabus

<p>Wills-Probate-Contestant-Impeachment in equity-Res judicata-Construction of statutes-Case at bar.-Executor .offers will for probate, J enters himself as contestant, and afterwards withdraws, and the will is probated; J then brings a bill in equity to impeach the will. Executor pleads that J was party to the “proceeding ” of probate, and consequently, under Code 1873, ch. 118, $ 34, debarred from again contesting the will.</p> <p>Held :</p> <p>1. The word “proceeding,” in said section, refers to the entire proceeding, including the order admitting the will to probate, or rejecting it.</p> <p>2. To support plea of res judicata, parties alleged to be concluded must have been parties or privies to the judgment, whereby the matter in controversy was determined.</p> <p>3. When the order of probate was made, J was not a party to the proceeding, and is not bound by it, so as to debar him from impeaching the will in equity within five years, under said section.</p>