| Or. | Jul 29, 1913
Opinion by
This whole proceeding is a concrete example of “how not to do it.” We have sought diligently in the transcript to find what was actually done, or attempted to be done, in the County Court; and on the argument we sought the same information from counsel, but without tangible result. The statement gleaned from the confused mass of papers before us probably comes within a marine league of being correct. The whole proceeding is a series of blunders.
1. The will of 1908 was filed without any petition for probate, but with such proofs as would have entitled it to probate in short form had a petition accompanied it. The contest was begun before the County Court had any jurisdiction of the will of 1908; no
2. But as there was an attempted probate of an earlier will, and a denial of the fact that it was the last will and testament of the deceased, the later will of 1908 was admissible as evidence of the fact that the will of 1885 was not the last will and testament of the deceased.
3. Upon the trial it was attempted to be shown that this will was procured by undue influence, and that the testator was mentally incapable of making a will at the time he executed it; but we think that the preponderance of disinterested evidence tends to show that the contention of the contestant is unfounded, that deceased was mentally capable of devising his property, and that he, in fact, did so. This being true, the will of 1885 was revoked, and the estate is at large, without a legitimate executor or administrator de bonis non.
4-6. The contestants cannot try out in this proceeding the question as to whether the wills were mutual and based upon an agreement that the survivor should leave his or her property to a particular person. Such an agreement is valid if performed by the making of such wills and the acceptance by the surviving party of the fruits of the agreement, but it is valid only as a contract, the performance of which by one party and acceptance by the other has taken it out of the statute of frauds: 40 Cyc. 2117, 2118. It is no objection to the probate of a will that it violates such an agreement, or revokes a former will made in pur
7. Upon consideration of all the testimony we are of the opinion that the will of 1885 presented by contestant was not the last will of "William C. Burke, but we are also of the opinion that the county and circuit courts erred in decreeing that the will of 1908 should be admitted to probate, in the absence of any probate of such will; the effect of the introduction of such will in the absence of probate being merely negative, and tending to contradict the contention that the will of 1885 was the last will of deceased.
The decree of the Circuit Court will be modified and a decree entered here to the effect that the will of 1885 is not the last will and testament of deceased, and that the cause be remanded to the Circuit Court, with directions to enter this modification, and to direct the County Court to require the devisee- under the will of 1908 to petition, within 30 days from the entry of such decree in the County Court, for the probate of said will, and that if such petition be not filed, to appoint an administrator to care for the property. This decree shall be without prejudice to the contestants to bring any suit to enforce specific performance of the alleged agreement between deceased and his ydfe to make mutual wills for the benefit of the contestants herein. Neither party will recover costs or disbursements in this court. Modified.