reacquirement of the naked title does not break the descent and constitute her a new source of title, for she conveyed the legal title to her own use. One other highly important and practical consideration remains in that as the grantor might never have anticipated the ulterior legal consequences of changing the descent, and a door is opened for prepetrating a fraud on the heir by enabling those having an influence over a grantor to effect a secret purpose of which the grantor might naturally have no comprehension. Gerard, Lampe & Stallo and Hollister & Hollister, for plaintiffs. [Hamilton Common Pleas, April 13, 1891. *ROBERT BARR'S WILL, IN RE PROBATE of. 1. In proceedings to admit to record in this state authenticated copies of wills probated in other states, it is competent for the court to admit persons to appear in such proceedings for the purpose of adducing evidence and taking other steps adverse to the applicants. 2. In such proceedings, the court may require the applicants to furnish security for costs. 3. Courts have inherent power to require non-resident suitors to give security for costs. SHRODER, J. (orally). There were two motions submitted to the court; the one, by the Barr heirs, to set aside, or modify, the entry heretofore made in these proceedings, by which Closterman and other property owners were permitted to appear in the case for the purpose of adducing evidence and taking such other steps as will enable the court to be better advised in determining the questions arising upon the application made to the court as to the proof in probating an execution of the will in question. The section of the statutes which authorizes the recording of wills executed and proved in other states, differs from that section which authorizes the probating of domestic wills. The latter section restricts the court to such evidence, only, as may be offered by parties interested in probating the domestic will. The former section, that is, the one which relates to the recording of wills probated in other states, does not restrict, or limit, the court to that class of proof only, but would permit the court to accept evidence with reference to the issues, from whatever source or by whatever person offered. The circuit court, in passing upon a similar application of this same will, expressed the opinion that the offer for record is an ex parte proceeding only. In view of that opinion, this court, upon this application at bar, refrained from making Closterman and others parties to the proceeding, in the sense that they were to be adversary parties, but caused the order to be entered by which they, as amici curiae, might be enabled to adduce evidence which might throw light upon the question of proof and execution *For former decisions upon applications to probate this will see 9 Dec. Re., 615; 10 Dec. Re., 118; ante 862. 386 Robert Barr's Will, in re Probate of. of the alleged will. This course is not only just and proper, and conducive to a correct conclusion of the questions raised upon the application, but is also in conformity with the spirit of the law as declared by the circuit court in the case of Mercantile Trust Co. v. Etna Iron Co. in the 2 Circ. Dec., 718. It would seem to be reasonable and fair that persons whose property rights might be affected by the recording of such a will, should have an opportunity of furnishing the court with evidence upon the subject-matter under investigation. It would relieve the court from being limited to the consideration of only such evidence as the applicant would choose to produce in his own interest, and would secure for the court evidence upon facts which the applicant might find to his interest to suppress. It is obviously in the interest of justice that such an entry ought to be made, and, having been made, the court finds no reason why it should be set aside, or modified. And the motion is, therefore, overruled. The second motion is to require the applicants to give security for costs, on the ground that they are non-residents of this state, and upon the further ground that costs incurred in the former applications for the record of this same will have not been paid by them, although, in all instances, the conclusions of the court were adverse to the application. The applicants, by their counsel, contend that the court has no right to affix this condition, or to require security for costs to be given on their part. They base their contention upon the proposition that the only provision in the statutes, as to costs, is found in the civil code, and applies only to civil actions, and that civil actions are only those in which there are adversary parties consisting of plaintiff and defendant. No mention is made of the provision in statutes, whereby the code provisions are to govern the probate court proceedings, as far as may be applicable. While it is not necessary for me to pass upon that point, as far as it relates to this application, yet I would be inclined to hold that the section of the code is only to apply to such proceedings in the probate court which are substantially adversary in their form and nature, and proceedings can be well imagined, and are necessary to be had, in that court, wherein the parties stand in the relation of plaintiff and defendant towards each other, and that these civil code provisions as to costs may be said to be confined, in their application, to such proceedings as I have mentioned as being had in the probate court. It might fairly be said that the civil code provisions as to costs would not apply to these proceedings at bar. It is not necessary, however, to look to the statutes for the power of the court to require a security for costs. An examination of the authorities, both at common law and in equity, lead to the conclusion that the right to demand security for costs of non-residents, is inherent in the court, in the furtherance of justice and administration of the law, and lies largely in its discretion, depending upon the exigencies of the various cases as they appear before the court. In Tichbourne v. Mosylyn, Law Reports, 8 Common Pleas, 29, this being the second ejectment suit, the court felt authorized to require the plaintiff to pay the costs incurred in the first case before proceeding further with the second. The first case having gone as far as the introduction of evidence for the defendant, when the jury, through its foreman, notified counsel that they need go no further, whereupon plaintiff took a non-suit, the costs of the first case amounting to something like forty thousand pounds. This proceeding of the court put manifestly a quietus to the whole matter, and, notwithstanding the conclusive effect of the order, substantially denying the plaintiff any further remedy, the court found no difficulty in requiring the costs of the first case to be paid before going on with the second. In Henderson v. Griffin, 5 Peters, United States Supreme Court, 151, in the second ejectment suit proceedings were stayed until the costs of the first were paid, the Supreme Court using this language in its opinion: "Rules of this kind are granted by the courts to meet the justice and exigencies of cases as they occur * * * depending on a variety of circumstances which, in the exercise of a sound discretion, may furnish a proper ground for their interference." In Hirst's Lessees v. Jones, 4 Dallas, Pennsylvania Circuit Court decision, the same ruling was made. In People v. Oneida Common Pleas, 18 Wendell, 662, is an opinion delivered by Cowan, J., in a proceeding of mandamus to compel the common pleas court to try a case, notwithstanding its order staying further proceedings until security for costs were given, the Supreme Court of New York refused a writ of mandamus, and, in the course of the opinion, held that the right to require security for costs was incidental to the powers of court, and was independent of statute; that this power was inherent in the court, and that the statutory provisions as to costs were simply cumulative. In Jackson v. Miller, 3 Cowan, 57, proceedings were stayed because costs in a former action had not been paid. In Jackson v. Edwards, 1 Cowan, 138, the same ruling. The court there cited Tidd's Practice, 479 and 480; 2 Tidd's Practice, 1141; 6th Term Reports, 228, 740; 8th Term Reports, 645; 10th Ilionois, 20. In Dyer v. Donavin 3 Howard's Practice, 135, and Swift v. Collins, Denio, 650, the same ruling was made in the latter case the court speaking of the statutory provision of the New York Revised Statutes under this head. In Richardson v. White, 27 Howard, 156, cited in the 73rd New York, 133, proceedings were stayed where former costs had not been paid. I might cite, also, 3 Cowan, 380; 10th Johnston, 364; 19th Johnston 237, on the same point. In chancery, in Pratt v. Fenner, 8 Rhode Island, 40, the equity court, in the case of non-residence of the complainant, followed the analogy of the law by requiring security for costs. For other chancery cases reference may be made to the 10th Johnston Ch., page 196; also to the case of Newman v. Landrine, 14th New Jersey Equity, 291, where the court held that the defendant in equity can require a complainant residing abroad to give security for costs; that it was an ancient and well-established rule to require such security, and to direct the procedings to be stayed; that "it does not rest upon provisions of our statutes." In 5 New Jersey Law, 782, the court held that the power of the court to require the payment or security of costs is not restrained by the statute, the provision of the statute being cumulative only. Further reference might be made to I. Daniel's Chancery Practice, 4th edition page 28; and the same volume, page 32; also 2 Daniel's Chancery Pratice, page 1605. In this court of common pleas, in the case of John Rahman v. Pendleton & Fifth Street Railroad, Cox. J., now of the circuit court, then a judge of the common pleas, in March, 1867, passed upon the question in a very well considered opinion. In that case Rahman had instituted an action against the defendant in the superior court, and recovered a judgment, which judgment was finally reversed by the Supreme Court. Rahman dismissed his action in the superior court, and began an action, on the same cause in the common pleas. Upon a motion made to stay proceedings until the costs in the superior court had been paid, Judge Cox, upon a consideration of the question already referred to, came to the conclusion that the plaintiff was not to be permitted to proceed further 386 Robert Barr's Will, in re Probate of. in this court until he had paid the costs incurred in the former suit in the superior court. It has been argued, by counsel for the Barr heirs, that the exercise of such power of the court was unconstitutional, inasmuch as the constitution of the state expressly provides that the courts shall be open to suitors. The conclusion upon the question of costs does not militate against this constitutional provisions; for it certainly was not intended, by this constitutional provision, to break down such salutary rules and barriers as the court had set up against oppressive or unjust prosecution of causes, or undue or unfair advantage being taken over court officials in matters of costs. The constitution undoubtedly uses the word "court" as it has been held in an analogous instance, it used the word "jury": It did not intend to invent the institution of court or jury but simply dealt with them as they existed at the time the constitution was made. They took the courts with their inherent powers, and by providing that the courts shall be open to suitors they did not intend to introduce any new features, specially, by their provisions, but took the courts as they were, with their inherent powers necessary for the administration of the law in judical proceedings. In this case, this is the fifth application for the recording of this will. Three of these applications found their way to the Supreme Court, and one is still pending upon an order of continuance in the probate court. In all of them, in the lower courts the results were adverse to these applicants and in all but one they were adverse to them in the reviewing courts. In one proceeding in the common pleas, and one in the circuit, orders were made requiring the applicant to pay costs. Neither of these orders have been complied with, and in no case have the costs been either secured or paid. The costs are due to the clerk and to the sheriff and other court officials, persons who are, by law, required to obey and execute the orders of the court; and for aught that might appear, some of those costs might have been to stenographers, who, in the first instance, received their pay out of the county fund, and thus an indebtedness has been incurred in favor of the public represented in the county fund. Under these circumstances, there is no hardship imposed, there is no wrong done, but, on the contrary, it is in furtherance of justice and a proper administration of justice in this matter, that the applicants who are non-residents, be required to furnish security for costs, before any further outlay, or liability, or service, is rendered in their interest in these proceedings. The order will, therefore, be that proceedings herein be stayed until the applicants furnish sufficient security for costs. Samuel T. Crawford, for the applicants. J. C. Harper and Ledgard Lincoln, contra. 5 LB 58 |