6 Mo. 177 (Mo. 1839)
DICKEY AND OTHERS
Supreme Court of Missouri.
September Term, 1839
COLE, for Appellee. 1st. The Circuit Court had jurisdiction of the case. 2d. The defendants as to the facts of the case are concluded by their demurrer on the record. 3d. That the question testamentum vel non, is a question of fact not to be inquired into by the appellate court. 4th. The Circuit Court has committed no error in matter of law that will justify a reversal of the judgment.
SCOTT and ZEIGLER, for Appellants. 1. That no legal will was ever presented to the County Court or clerk thereof, to be probated, proved or established according to law. 2. There was no legal rejection of the said supposed will by the County Court on which to found the application to have the same established in the Circuit Court on petition. 3. That the Circuit Court had no jurisdiction over the subject matter presented to them in the petition of said Malechi to have the will established, but that the j??nrisdiction was exclusively in the County Court. 4. There was no evidence that the said supposed will existed at and up to the time of the death of the testator, or that any search or inquiry had been made for the original. 5. That the petition to the Circuit Court to establish the supposed will did not state that the will existed at the time of the death of the testator, and had not been destroyed or cancelled by himself, and that diligent search had been made therefor. 6. That the said petition to the Circuit Court did not state the whole provisions of the said supposed will, but the substance of particular provisions and in part only. 7. That there was not sufficient or competent proof of the contents of the said will for they must all be fully proved. 8. That the Circuit Court admitted improper and incompetent testimony on the trial of the cause in the Circuit Court. 9. That the Circuit Court erred in overruling the demurrer filed by the defendants below to the petition and exhibits of the petitioner. 10. That the Circuit Court erred in sustaining the demurrer of the said Malechi, the petitioner, to the plea in bar of former recovery and adjudication filed by the defendants in the court below. 11. That the Circuit Court erred in setting aside the non-suit for the reason that no sufficient grounds were shown to justify the court for so doing. 12. That the Circuit Court ought to have arrested the judgment on the reasons filed in that behalf. 13. That the Circuit Court in the giving of some and refusing to give others of the instructions asked to be given or rejected to the jury on the trial. See Bill of Exceptions, 2, 3. 14. That it is entirely too uncertain from the testimony what the several provisions of the will were, even supposing such a will to have once existed. 15. That unless the whole provisions of the will are proved the court cannot give it the proper construction, or carry into effect the intention of the testator according to the statute. 16. That two witnesses are equally necessary to prove the contents of the last written will as in the case of a non-cupative will.
One Antoine Simmino, of Ste. Genevieve county, about the 5th of January, 1833, made his last will and executed it according to law, in the presence of two witnesses, John Findly and John Blital Beauvais, and died about four or five days after making his said will. John Campbell and Ebenezer Dickey, who had married sisters of Simmino, were appointed executors by the will. Immediately after the execution of the will by Simmino, who was proved to have been of disposing mind at the time, he handed the will to Campbell and requested him to place it in his (Simmino's) pocket book, and put the pocket book in his (Simmino's) desk, which was in the room where he lay. Campbell did as he was directed; but on the morning after the death of Simmino; Campbell and Dickey, the executors named in the will, went to Simmino's house to take possession of the will, but could not find it; nor has it ever been produced since. There was proof conducing to show that the will was in existence, on the evening before the testator died, and also on the morning after, in the course of which it disappeared. It also appears from the testimony, that the provisions of the will were in accordance with the previously fixed intentions of the testator frequently expressed to various individuals.
In January, 1833, Ebenezer Dickey took out letters of administration upon the estate of Simmino, and proceeded to act under the same. About the first of March, 1834, Francis Malechi, to whom a considerable real and personal property had been left by the will, by his guardian, Ichabod Sargent, presented his petition to the County Court of Ste. Genevieve county, praying that the paper writing annexed to his petition, purporting to be the substance of the will of Simmino, might be admitted to probate, and calling on the heirs at law to show cause, & c., and requiring them to answer on oath touching the premises. The cause came on to a hearing in the County Court, and that court adjudged that there was no such last will and testament of Simmino as Malechi in his petition had alleged.
In June, 1836, the defendant in error, Francis Malechi, by his guardian, filed his petition in the Circuit Court, praying to have the will established, reciting the rejection of the same by the County Court, and citing the heirs at law to appear. The heirs at law, plaintiffs in error, appeared, and plead first to the jurisdiction of the court...