Barnard v. Bateman

76 Mo. 414 | Mo. | 1882

Sherwood, J.

Under the ruling of this court in Wilson v. Wilson, 54 Mo. 213, the fact that a will is not probated until after suit brought, is wholly immaterial, since under that ruling the act of probating relates to the death of the testator, and confers title from that period. But the objection was*taken at the trial, that the will had not been probated. It is true it had been recorded, and from this perhaps, it might be-inferred that it had been probated, but this recording may have occurred in vacation. If the will had really been probated, the inference is equally strong that the records of the probate court would have contained the evidence of that fact, which confessedly they do not. The statute, section 3989, only permits a will to be read in evidence when proved according to the statutory provisions, recorded and certified by tbe clerk of the court and attested by his seal of office. So far as this record shows, the will in question has not been proved, nor has it been certified as required by law. As an instrument of evidence it was, therefore, worthless, and the objection to its admission must be held well taken. Therefore, judgment reversed and cause remanded.

All concur.