65 Mo. 432 | Mo. | 1877
This was ¡i proceeding in the circuit court to establish a last will and testament alleged to have been lost or destroyed. The evidence for plaintiffs established the execution of a will by the testator on the 25th of April, 1865, a copy of which was proved. The evidence on the part of defendants proved, that in the fall of 1866, the testator made and executed another 'will, making a materially different disposition of his property, and had the will of 1865 burned. This burning, however, was done after the will of 1866 was prepared and signed, but before its attestation. It was proved by plaintiffs that in May, 1870, the defendants herein appeared before the probate court of Marion county, and resisted an effort to probate the will of 1866, on the ground that the testator had not a disposing mind and memory when it was executed, and that the probate court rejected it, but whether because of the incapacity of the testator, or on other grounds, does not appear. The condition of the testator’s mind, when the will of 1865 was burned, was not shown, and we shall, of course, assume that he was then in his right mind. The court in its second instruction, declared the law as follows: ^Although Henry P. Banks, at the request of Garrard Banks, destroyed the paper writing executed April 1865, and although said Garrard requested said Henry to destroy said paper writing, with the intent to revoke the same, yet, if at the time, he so directed the destruction of said paper writing, he intended to revoke the same in order to substitute the other 'paper writing then in his hand, of October 20, 1866, in its place, as his will, then in that ease the destruction of the paper writing of date April 25, 1865, did not revoke it as a will, unless the said other paper writing was^alid and operative as a will.”
Defendant attempted to set up the will of 1866 as of itself a revocation of the will of 1865. The court properly lielcl that the judgment of the probate court rejecting that will, was conclusive upon the defendants. The probate court, when not othei'wise provided by law, has exclusive original jurisdiction in all cases relative to the probate of last wills and testaments, and its judgment rejecting or probating a will cannot be attacked collaterally. Section 29, Wag. Stat. p. 1368, provides that, “ if any person interested in the probate of a will, •shall appear within five years after the probate or rejection thereof, and by petition to the circuit court of the county contest the validity of the will, or pray to have a will proved, which has been rejected, an issue shall be made up, whether the writing produced be the will of the testator or not, which shall be tried, &c.” Here defendants sought to prove the will of 1866, notwithstanding the judgment of the probate court rejecting it; and insist that the judgment of that court was not conclusive, because by Sec. 29 supra they had five years within which to proceed, by petition to the circuit court, to have the will proved. They have not filed a petition, as that section requires. They have not even in the answer, in this case asked to have it proved; and yet attempt by evidence in this proceeding, to set it up as a revocation of the will of 1865. The rulings of the court on that subject were correct; but because the court erred in its second declaration of law, the judgment is reversed and the cause remanded.
Reversed.