131 Mo. 559 | Mo. | 1895
This case went off in the circuit court upon a demurrer to the petition. Those pleadings the reporter will please copy at length as an introduction to the report of the case in this court.
The only question here is whether or not the ruling sustaining the demurrer shall be affirmed.
"Where the fact of a will appears, the law does not then infer an intestacy as to any part of the property of the deceased. Webb v. Archibald (1895) 128 Mo. 299 (28 S. W. Rep. 80).
The parties who, under the will of Mr. Overton, deceased, are entitled to claim the real property referred to in the deed sought to be canceled in this suit, are the proper parties to maintain the action, on the facts as they appear in the petition under review.
If the deceased made no disposition by will of the land in controversy, that fact should appear to entitle those relying thereon to maintain the action as representatives of the title of the deceased.
If a party who is united in interest with those who wish to bring such an action refuses his consent thereto, he may be made a defendant, in accordance with the code provision to that effect. R. S. 1889, sec. 1995.
But that provision does not relieve plaintiffs who bring a suit thereunder from showing an interest in the subject of the action necessary to its maintenance.
We think the ruling of the learned circuit judge sustaining the demurrer was correct.
The judgment is affirmed.