*1 may ordinarily knowledge such screen serve. It is common that a screen, ordinarily fixed, secured as offers some resistance pressure upon it. Plaintiff's mother warned Price that purpose keep falling its was to her small children from put window, from the window. When Price it in the it was then duty therein, ordinarily hi~ to see that the screen was ffxed as done. question jury. This was a for the (c) question jury We also think that it was a for the as to whether screen, ordinarily done, kept plain.. fixed therein as would have falling previously said, tiff from out the window. As we have it is knowledge screens, ordinarily common fixed in windows, pressure, have some resistance to and it was a jury question facts, screen, under the as to whether ordinarily therein, if as and with reasonable care fixed would have prevented plaintiff falling from out the window. flange groove VI. The evidence tha± the outside was bent angle forty-five fifty degrees, and mashed outward at an or rusty places places spots flange it was and in other eutirely disappeared, prima-f proof neg- had ligence. was acie facts, then, prima-f stand, The acie that de- placed screen, they fendants in the window a which agreed placed act, degree least, and knew was there to in some keep falling window, to they immature children from from the and that knowledge equivalent had actual or its the screen was not ordinary care, secured in the. manner or with reasonable and that placing window, the stances, of the screen in the under the facts and circum- repair, improvement was tantamount to a or restoration of building, flange proof and that the condition of the outside was negligence. plaintiff, theory, We think under this made a sub- missible case. judgment Gooley The is reversed and the cause remanded. Westiwes, CU., concur. foregoing opinion by DAVIS,0., adopted PER GURIAM :-The opinion judges as the of the court. All of the concur. Coffman, Appellants, Elizabeth Smith and Archie v. Adam T. (2d) Smith et al. 37 S.W. 902. Two, April 14, Division 1931.
Roger appellants. for Miller, J. Miller Vane and Scott Thurlo *3 respondents. Marr B. Burns and P. M. for
G. COOLEY, C.—Suit to contest purported last will of one George W. Smith. The suit was filed in the Circuit Court of Sullivan County change sent on venue to County, Linn where the trial sustained a motion filed defendants to dismiss the cause. unavailing After motions for new trial and arrest, plaintiffs ap- pealed.
Plaintiff Elizabeth Smith the widow of testator. Plaintiff Coff- man’s relationship to testator is not but it alleged, developed, as *4 will shown, be herein nephew that he is a Elizabeth, of said but not grounds an heir testator. As for setting aside will petition the the alleges, effect, in substance and that testator did not have mental capacity to make a will question at the in pur time the instrument ports executed; to have been sign that he did in fact said instru purported signature ment that appended and his by thereto was some one his knowledge else without or consent “or least without his knowledge of paper writing what the . meant, . . or intended to purported and “if mean;” signed that the said will was at the George direction of through W. Smith it was the undue influence (not defendant) D. Y. agent Mardis a and others acting1 as of the defendants,” and that “the defendants and each of them exerted an undue influence George Smith, over the mind of said W. the de petition alleged showing ceased.” The facts no that Coffman had any entitling interest him will, allege to contest the nor it did facts showing setting profited that Mrs. Smith could have the by aside will, simply renouncing since it she could it in have rendered operative rights so far as it affected her in her husband’s estate. the to demurrers general filed defendants tbe fifteen Twelve to constitute sufficient to failed state facts alleging that it
petition, The pleading. no filed other defendants of action. The a cause filed defendants all the thereupon and demurrers the court overruled reads signatures, caption and omitting which, dismiss a as follows: court dismiss to and move the herein defendants now “Come the for grounds herein, and proceedings petition plaintiffs’ the motion state: such persons as have such herein plaintiffs of the “That neither State. of this laws under the a will contest to ‘‘ Archie plaintiff will herein the contested terms of by the That not an heir he is legatee; that $100 as sum of receives the Coffman nothing he will receive set aside will is testator, if said of the estate. from said deceased, of the as the widow Smith Elizabeth plaintiff “That County, Court of Sullivan Probate in the her election duly made has Missouri, real and one-half personal of the take one-half to par- deceased of said real estate had the deceased, has of the estate of Sullivan Court in Circuit election under said and sold titioned set out and in land homestead said had her Missouri, and has County, County, Sullivan Court of Circuit election her said bound is set out and land said had her homestead Missouri, and has con- will if herein partition, election her said bound take to to permitted elect she would set aside should be tested taken with has now than she estate in said any greater probated.” will dismiss. upon the motion hear evidence proceeded The Coffman tending plaintiff to show offered evidence Defendants testator; after an heir but not co-plaintiff, of his nephew ais Elizabeth renounced controversy, plaintiff will probate per- real one-half take her election filed will hav- debts, testator subject payment testator, property sonal brought suit subsquently she descendants, and that ing no left election her claiming one-half thereof estate, real partition proceeded suit partition half; that the other in the homestead ordering petition, with the in accordance interlocutory decree an sold, land the balance Elizabeth said off to set homestead homestead. off the set who appointed were commissioners from statements infer We stops. there evidence Defendants’ at that halted proceedings were partition counsel briefs of *5 will. the contest to suit this of institution stage by the evidence hearing of objection the to at first offer not did Plaintiffs of point the to progressed had defendants but after motion, on the election her will the of renunciation the widow’s having shown evi- the asked that objected statute, plaintiffs under the to take go the ground to that it did not beard be out on the dence stricken is contest;” contest that a motion to dismiss a will “issues of the such suits statute, prescribes how contemplated which the objection motion strike brought prosecuted. to shall be The partition prove proceeded out Defendants the were overruled. moved proceedings rested, whereupon plaintiffs mentioned and above and the grounds mentioned to strike out all the evidence on the remedy ground proper further that a is not motion to dismiss the defend- point under the “to reach made the statute the issue ants;” sought motion should presented the matters be jurisdiction pleaded by be that court have answer, and did not mo- That such matters the cause. determine on dismiss tion to strike out was also overruled. days tending prove some ten
Plaintiffs then offered that evidence controversy prior filing probate in there to the in the the will presented will testator had and filed that court a former been substantially George Smith, 1909, by gave W. executed in which he probate Elizabeth, wife, his whole estate to his said former judge such proof showing had taken the due execution will.
Having heard the evidence as above outlined the court sustained defendants’ motion and dismissed the ease. question presented appeal novel,
The pro- on this is as was the adopted in precedent support cedure the trial court. No reports Respondents course followed is cited from State. this jurisdictions cite cases from several other effect to the put when in issue and of contestant is ground challenged contest will on his submitting interest, such should be determined before issue of lack validity of In jury issue of the the will. those cases issue to a statutory provisions presented in accordance with the was made respective jurisdictions, and courts practice of the rules of rulings statutory having provi in mind such their made of course determining cases do not aid us procedure. Those sions under our procedure permissible followed this case is whether statutes. 537, 1929, provides in Statutes substance Revised that if
Section any probate by petition in the will shall any person interested validity thereof an issue shall court contest the the circuit made will produced writing not, be the of the testator or up whether jury jury tried unless a is waived. issue shall be Issues which presented by pleadings, fact law suit made in a 764, pleadings. Section by motions outside of the Revised Statutes requisites petition setting prescribes plaintiff’s forth his only provided By plead- Section it is “the of action. cause part the defendant is either a demurrer an ing on the answer.” *6 638 5,
Other sections 5, Chapter 1929, provide of Article Revised Statutes contain, allega- what the answer shall plaintiff’s both denial of as to and as tending plaintiff’s tions to new of matter to defeat cause action. We know statute, practice, of no or rule for that matter of authorizing a challenge by alleged defendant to motion the facts plaintiff’s petition part and which essential constitute an the state- ment of his action, join cause and thus as to such facts to issue which can upon be tried and determined the court the motion separate apart and from trial and determination other issues pleadings. plead- tendered may happen It sometimes ings make different issues, may properly some of which be triable to the court jury, may require a permit others to even separate hearings. question, need not consider such because We presented. situation here
We have held, Frank, heretofore 267 713, in Gruender v. Mo. S. W. showing a will in- contest the facts contestant’s terest consequent right to maintain the suit constitutive elements of plaintiff’s the statement of cause of action and if not petition petition
stated in the fails to state facts action; sufficient to constitute a cause that such de- petition fect in merely plaintiff’s does not involve legal capacity sue, to which would be waived failure of defendant thereto; to proved demur and that if such facts are the court should necessarily sustain a demurrer evidence. It follows petition that a which fails to state facts is such demurrable for failure a to state cause of action. If plaintiff the demurrer is sustained may petition they amend his the facts if exist. If state the de- murrer erroneously remedy. should overruled be the defendant has his case,
In stated, petition, this as defendants did demur to which appropriate procedure. orderly was The court overruled their Conceding demurrers. ruling erroneous, that such was defendants had appropriate adequate remedy following their well estab- practice. following lished usually Instead of prop- the course erly petition followed when a demurrer overruled, a has been quoted nothing defendants filed the motion to dismiss. above There is that, pertinent belong in the motion properly so far as did not all, pleadings in the on one side or the other. pursued
The course and the court’s action leave the ease'in this By overruling anomalous situation: defendants’ demurrers action; petition plaintiffs held that stated a cause were not upon complain; called to amend and so had no occasion to far sustaining subsequent dismiss, ground on question plaintiffs, presented by lack of a the demurrers favor, put plaintiffs’ plaintiffs and there ruled out court with- opportunity petition showing out amend their state the facts rulings interest, if The court’s such facts existed. were not their they plaintiffs precluded inconsistent- from but only exercise of which they Further, were entitled. court assumed try upon required and determine the motion which facts were pleaded proved part plaintiffs’ cause of action.
Moreover, brought will, a suit to contest a by party interest, a in petition stating the action, a cause of cannot be dismissed without adjudication upon an filing the will. The of such has the suit effect judgment
of vacating
admitting
of
probate
the
the
court
leaving
the will to probate,
unproven
the will
unless
and until
judgment
by
established
the
of the circuit
court.
McQuillin,
ex rel.
246
[State
Damon et al. v.
674,
Mo.
152
341;
S. W.
Hogan Hinchey,
v.
195
94
527,
W.
Mo.
S.
522; Johnson v. Brewn,
392,
277
Mo.
petition action, did state a cause of therefore necessarilv that it was
brought by party (see Frank, in Gruender v.
supra) yet upon dismissed it defendants’ motion adjudicating upon giving plaintiffs without will opportunity upon to be heard issue of will or will. no appears It to us clear that improper court’s action was unauthorized.
Respondents suggest that, plaintiffs object as did not at first introduction support defendants of evidence mo- tion to dismiss, they waived the so to do and cannot now eom-
plain Since, hold, the court’s action. as we the court was authority dispose without entertain the and to motion did, persuaded plaintiffs’ delay we not case as it authority. urging objecting precluded them from later such lack of object hearing They was before the did before the concluded and complaint is Plaintiffs’ court had ruled on the motion. proper was a
admissibility motion dismiss if the the evidence presented by motion sought procedure to be but issue way. properly presented and determined could dismissing It is of the trial court our conclusion that the action cause re- and the the suit was erroneous should 'be reversed of dis- the order set aside manded with directions to that court to proceed dismiss missal, case, reinstate.the overrule CG., WestkiDes, concur. Davis and with the case. It is so ordered. Cooley, C., adopted foregoing opinion PER CURIAM: —The All judges concur. of the court. opinion as the Es of Persons Guardian Curator Porterfield, Katherine Byron Appel Dorothy Porterfield, tate Porterfield Exchange Liquidation; In Gallatin, lant, v. Bank of Farmers Joseph N. Finance, Martin, Cantley, Commissioner L. S. (2d)W. Charge. Finance, S. Deputy Commissioner 936. *8 Two, April 1931.
Division