Benoist v. Murrin

• Decision Date: 31 March 1871
• Citation: 48 Mo. 48
• Parties: SANGUINETTE H. BENOIST et al., Respondents, v. JAMES MURRIN et al., Appellants.
• Court: Missouri Supreme Court

48 Mo. 48

SANGUINETTE H. BENOIST et al., Respondents,

v.JAMES MURRIN et al., Appellants.

Supreme Court of Missouri.

March Term, 1871.

Appeal from St. Louis Circuit Court.

Wickham, with whom was Gantt, for appellants.

I. The issue devisavit vel non having been regularly raised by the parties contestant, the executor becomes the propounder of the will and actor in the proceeding, which is in the nature of a proceeding in rem. Unlike an ordinary suit between indi viduals, it is inaccurate, and a misconception of this statutory proceeding, to call either of the parties plaintiffs or defendants. Both sides are equally actors, and the question of will or no will having been regularly raised, neither party is at liberty to withdraw and defeat the trial; on the contrary, the paper itself--the res--is sub judice, and the court must pass upon the issues and give judgment for or against the will, without regard to persons or parties, plaintiff or defendant. (St. John's Lodge v. Callender, 4 Ired. 343-4.)

II. The effect of the initiation of this proceeding before the Circuit Court, by parties who are properly entitled to contest a will, is to cast a doubt upon the validity of the will--to call in question the proof thereof, taken in common form ex partebefore the Probate Court, and require the will to be proven in solemn form before the Circuit Court. This having been done, the executor represents those who are interested in the provisions of the will, and, along with them, is entitled to have the issues on the will made up and tried in the Circuit Court. The contestants, after thus casting doubt upon the validity of the will, cannot at their pleasure withdraw from the proceeding and leave the will discredited, and the title to the property under it in doubt; but the parties claiming under the will are entitled to a trial of the issues made up. (Burrows v. Ragland, 6 Humph. 486.)

III. The manifest policy of the law and the interests of society are to encourage the early settlements of estates. But should the contestants be allowed to dismiss this proceeding at their pleasure, after the issues are made up under the statute, without prejudice, with the right secured to them of renewing the controversy at some future time within the five years allowed them by statute for commencing the proceeding, the wholesome policy of the law would be superseded. The title to the property of the testator would be placed in doubt, and the executor embarrassed and harassed with doubt as to the proper manner of administering the affairs of the estate. The policy of the law and the interests of society do not admit of such a course; and when the issue of will or no will is once made, it is the duty of the court to try the fact, and approve or reject the will, without reference to the individuals interested in the result. (Hodges v. Bauchman, 8 Yerg. 187-9.)

IV. The proceeding in the Circuit Court, in the matter of the probate of a will, is in the nature of an appeal from the action of the Probate Court. (Dickey v. Malechi, 6 Mo. 177.)

Glover and Shepley, for appellants.

I. If any party in interest is not satisfied with the ex parte common form of probate, he must signify it in such mode as the law provides, and then the person or persons interested in maintaining the will must prove it again ““in solemn form”--that is, must establish it again by witnesses, and against all opposition. (2 Redf. Wills, 28, § 2.) The modes of proceeding to demand probate in solemn form are different in different States; but probate is conclusive only when made in solemn form. (Brown v. Anderson, 13 Ga. 176-7; Kinard v. Riddlehoover, 3 Richardson, 258; Armstrong v. Baker, 9 Ired. 112; Etheridge v. Corprew, 3 Jones, 16; Collyer v. Idley, etc., 1 Bradf. 94.) When proof in solemn form is called for, the law says the propounders of the will shall make it; and as they are deeply interested in making it to quiet the contest about the will, the law further declares it is their right to make it finally and conclusively.

II. The proceeding to establish a will is a proceeding in rem, and, if conducted by and against parties who are interested in the question, calls in all other parties, who must take notice, and are bound by the judgment, whether they come in or not. (Hodges v. Bauchman, 8 Yerg. 186.) If all the parties interested are not before the court, nevertheless the judgment for or against the will is binding. (Singleton v. Singleton, 8 B. Monr. 350.) The probate or rejection of a will, by the proper tribunal having the case regularly before it, is, like a sentence in rem, conclusive, while it remains in force unreversed, between all persons, whether formal parties in interest and on the record or not. (Tibbatts v. Berry, 10 B. Monr. 474; Scott v. Calvit et al., 3 How. Prac. 148; Nalle v. Fenwick, 4 Rand. 588.)

III. In Roberts v. Travick, 13 Ala., N. S., 74, the plaintiff, who had propounded the will, put in all his testimony but one witness, and heard all the testimony of the contestants, and then, fearing an adverse decision, offered to take a nonsuit; but the court would not allow it, and the Supreme Court of Alabama approved the ruling. (Kell v. Rogers, 28 Miss. 83; St. John's Lodge v. Callender, 4 Ired. 335; Love v. Johnston, 12 Ired. 358.) Certainly the same reasons would obtain when the effort is to prevent the conclusive proof of a will.

IV. The interests of society admitted of no delay. If any one or more interested objected to the validity of the will, then the court was ordered by the statute to make up an issue of will or no will and try the fact by a jury, and, according to the finding, record or reject the will. (Pegg v. Warford, 4 Md. 396.) By consent of parties the issues may be abandoned. (Bond v. Gray, 2 Ga. 137.) The propounders of a will for probate cannot dismiss the proceedings.

The contestants are entitled to the judgment of the court. (Whitefield v. Hart, 9 Ired. 175.) In case of an issue devisavit vel non, either party has the right to insist on a verdict. (Rogers v. Thomas, 1 B. Monr. 394; Rigg v. Wilton, 13 Ill. 15.)

V. The proceeding to contest a will under our statute is a mere substitute for the old proceeding in chancery for trying in a court of law the issue devisavit vel non. (Hill v. Barge, 12 Ala. 687; 2 Smith's Ch. Pr. 74-89.) Whenever a party in interest contests a will, he shall present his petition, and an issue shall be made up and tried. (2 Wagn. Stat. 1368, § 29.)

E. Casselberry, for respondents.

I. The court below had the right to dismiss the suit. (Nordmanser v. Hitchcock, 40 Mo. 178; Fink v. Bruihl, 47 Mo. 173; Downing v. Still, 43 Mo. 321; Latham's and Deming's Appeal, 9 Wall. 145.)

II. The order of the court below, in dismissing the case, is without prejudice, which is in strict conformity with the former chancery practice. Under the former chancery practice, if a cause was dismissed without prejudice the complainant had the same rights as if no suit had ever been brought. He occupied the same position that the plaintiff occupies at common law when he takes a nonsuit. In this case, therefore, the plaintiffs had a right not only to dismiss their suit, but to bring a new suit to the same end, with like effect as if no suit had ever been brought. Inasmuch as the plaintiffs in the court below had the lawful right to dismiss the cause, it is not in order, nor is it necessary, to discuss their reasons for doing so. If it were, we could give the best of reasons.

CURRIER, Judge, delivered the opinion of the court.

This was a proceeding under the statute (2 Wagn. Stat. 1368, § 29) to contest the validity of a paper produced and proved in the St. Louis Probate Court as the last will and testament of the late Louis A. Benoist. After the case had been pending for some time in the St. Louis Circuit Court, and subsequently to the framing of issues, or rather the issue of devisavit vel non, the petition was dismissed without prejudice to the contestants' rights and upon their motion. The contestees thereupon moved to set aside the order of dismissal, and to reinstate the cause so that they might proceed to make proof of the will in solemn form, as it is called. The motion was overruled, and the contestees bring the case here by appeal. Whether the court was warranted in dismissing the petition in the manner stated, is the question presented by the record for consideration.

If this were an ordinary suit between litigating parties, over which the Circuit Court had original jurisdiction, there could be no doubt of the right of the plaintiffs to dismiss or take a nonsuit at any time prior to the final submission of the cause to the court or jury. (Gen. Stat. 1865, p. 662, § 47; 40 Mo. 178; 43 Mo. 321; Fink v. Bruihl, 47 Mo. 173.)

But this is not an ordinary suit, nor had the Circuit Court riginal jurisdiction of its subject-matter. The original jurisiction was with the Probate Court, where the will was originally orobated and ordered to record. The proceedings were in rem, operating directly upon the will--the res; and the transfer of the case to the...