24 Mo. 159 | Mo. | 1857
delivered the opinion of the court.
This suit ought not to have been dismissed on either of the two grounds that have been suggested to us. The order of the Greene Circuit Court changing the venue was not a nullity ; that court had jurisdiction to make it for the causes stated in the petition, and the error, supposing it to have been one, as to the verification of the petition, was a mere irregularity in the proceedings and not a ground of nullity. The objection is that
The defendant was estopped from raising the other objection upon which he insists. Whether the judge of the Greene probate court had authority in vacation to take the proof of wills, and supposing he had not, whether, if the proof was in fact made and administration de facto granted, the act was after-wards impliedly ratified by proceedings in term, both on the part of the court and the administrator, founded upon the assumption that the will was lawfully established, are questions that we are not called upon to decide here, and on which therefore we shall not volunteer an opinion. The alleged will had been proved de facto before a judicial officer, at the instance of the party who now makes the objection, and was, we may suppose, at the very time the objection was being made, treated both by the party himself who now makes the objection, and the court having jurisdiction over the matter, as a legally established will. Certainly, the executors can not be allowed to deny in the Circuit Court the existence of that which they are acting upon in the probate court — to insist in the latter court, by acting upon it as such, that the instrument is the established will of the supposed testator, and at the same time to deny it in the Circuit Court, in order to get rid of the only proceeding allowed by law, to determine whether or not it is his'will, and ought to be established as such. Besides, in the present ease, the party did not make the objection at the first opportunity he had, but allows an issue to be made up as to the validity of
Again, it is said the suit was instituted prematurely, having been commenced immediately after the allowance of the will and grant of letters by the probate judge, and before the proceeding had been rejected or confirmed by the court at the succeeding term. The answer to this is, that the letters, granted in vacation, are not limited in point of time, so as to continue only to the succeeding term, and then expire, unless confirmed by the court. They are subject to the confirmation or rejection of the court, and it is the duty of the court to pass upon them ; but they are valid until they are rejected. If the proceeding of the probate judge allowing this will and granting letters upon it had been rejected by the court, then the issue asked by the plaintiffs whould have been unnecessary, and so would the trial of the issue, if the issue itself had already been allowed and made up ; but nothing of that kind is pretended here. The judgment must be reversed, and the cause remanded.