4 Mo. 210 | Mo. | 1835
Opinion of tho court delivered by
This is a bill in chancery filed by one legatee and against the other legatees and heirs to establish and carry into effect, the provisions of a will, so far as its contents can be proved. The circuit court dismissed the smcl ths plaintiff appeals to tins couit*
The bill charges that the will ivas duly executed in the lifetime of the testator — and l^ft, at his death in custody of his wife, that since his death the will has been fraudulently taken from the possession of said widow
The sixth section of the act concerning courts &c. pagsed 7th Jan. 1825, see digest p. 270, gives to .the sev-eval courts of probate exclusive original jurisdiction in all cases relative to the probate of last wills and testaments, the granting of letters testamentary &c., see the case of Mullanphy’s will, Graham and others vs. O’Fallon, 3d vol. Mo. decisions p. 507. There is nothing stated in this bill to vary it from the above cited case of Mullanphy’s will. It is true that it appears in evidence that a part of the will could not be proved, and by recital in one part of the bill, that some of the legatees heirs reside in Kentucky. Had, however, both of these facts been stated in the bill we are prepared to say, that still the court of chancery would have no concurrent jurisdiction with the probate court. By the tenth section of the act concerning wills and testaments (Digest p. 742,) any person wishing to come in and contest the validity of a will may do so within five years, but after that time, no one but infants, married women andpei-sons absent from the United States and their territories during the whole of said five years &c. can be admitted to contest such will; so that the probate court (now county court) can in this case grant as much relief as a court of chancery.
The complainant has not produced one authority to show that a court of probate acting under a law similar to ours ever refused to grant probate of so much of a last will as could be proved when all could not be so,, and we see no reason why that court should not grant probate of so much of the last will as can be proved. It is not alleged in the bill that the complainant had need of the confessions of the defendants t.o enable him to establish the will, or of any other testimony which could not be procured without the aid of a court of equity. We aie therefoi e of opinion that no case has been stated o? even shown by the evidence to require the interposition of a court of equity, and therefore affirm the decree of the circuit court.
Wash Judge, absent.
