Graham v. O'Fallon

• Decision Date: 31 October 1834
• Citation: 3 Mo. 507
• Parties: GRAHAM AND OTHERS v. O'FALLON, EX'R.
• Court: Missouri Supreme Court

3 Mo. 507

GRAHAM AND OTHERS

v.O'FALLON, EX'R.

Supreme Court of Missouri.

October Term, 1834.

ERROR TO THE ST. LOUIS CIRCUIT COURT

TOMPKINS, J.

At the November term of the St. Louis County Court for the year 1833, certain papers were filed in that court purporting to be copies of the will, & c., of John Mullanphy, dec'd. John O'Fallon, defendant in error, claiming to be the executor of said Mullanphy, offered to prove that the papers above mentioned were a copy of the last will and testament of said deceased; and also offered to prove that the original will and testament was [were] duly executed by said Mullanphy in his life-time in pursuance of law; that the said original will and testament was [were] in existence since the death of said Mullanphy; and that it had been since his death either lost or destroyed, and that it cannot be produced; and further offered to prove that the paper produced is a true copy of said original will and testament. To the taking of this proof, and the jurisdiction of the court in taking probate of such last will and testament in the manner aforesaid, James Clemens and Eliza his wife, Richard Graham and Catharine his wife, William Harney and Mary his wife, which said Eliza, Catharine and Mary are some of the heirs at law of the said Mullanphy, objected; and the county court sustaining their objection, rejected the evidence offered. From this decision of the county court O'Fallon appealed to the Circuit Court, and that court having reversed the decision of the county court, Graham, Clemens, Harney, &c., sued out a writ of error to this court, believing that the proper mode of proceeding in this case is by a writ of mandamus from the Circuit Court to the county court, commanding it to admit the proof or show cause; we will, nevertheless, as the cause is before us, and as it is important that a final decision should be had in as short a time as is consistent with a correct administration of justice, take it into consideration. The assignment of errors being general, we will consider only whether the evidence has been properly rejected. The plaintiffs in error contend that the county court can grant probate only of the original executed by the deceased, and not of a copy. They rely on the 5th, 6th, 8th and 10th sections of the act coneerning wills. Those sections all are framed with a view to direct the courts how to proceed in the proving of wills which may be exhibited in court. The 8th section provides that in certain cases the court or its clerk may issue a commission annexed to a will, and direct it to any judge or justice of the peaee, &c., empowering him to take and certify the attestation of the witnesses to such will. The 10th section requires that when any will shall be exhibited to be proved, the court or clerk having jurisdiction thereof, shall receive proof thereof, and grant a certificate of probate, &c., thence it is inferred that the statute only intended to confer this jurisdiction on the county court in cases where the original was produced (see Revised Code, pp. 791-2). On the other hand, the counsel for the defendant contend that the act of 1825, concerning courts, gives to the probate courts a general jurisdiction in all cases relative to the probate of last wills and testaments; and that the act concerning wills does not restrain that jurisdiction, and rely on the 3d section of the same act, (see Rev. Code, p. 790) which, they say, shows that the Legislature, in passing that act, had in their mind the case of destroyed wills. And they add, that the act of 2d January, 1827, to amend the act to establish courts of justice, &c., transfers to the county courts all the power before possessed by the probate courts (see 3d section, p. 19, of the acts of 1826-7).

The 6th section of the act of 1825 above mentioned, and to which the counsel of the defendant in error refer, gives to the several courts of probate exclusive original jurisdiction in all cases relative to the probate of last wills and testaments, the granting of letters testamentary and of administration, and the repealing of the same, &c. The act concerning last wills and testaments seems to have been made partly with a view to direct the court of probate how to proceed in some of its duties. The 8th section gives to that court the power to issue a commission annexed to the will, to certain judicial officers, to take and certify the attestation of such witnesses as may be prevented by sickness from attending, or may reside out of the State, &c. The 10th section directs the court or clerk how to proceed, when a will is presented and witnesses are at hand. As the most ingenious and able lawyer would find it a difficult task to foresee every difficulty or doubt that might arise in the discharge of the duties of probate courts, the Legislature seems to have contented itself with providing for those cases which appear to have presented the greatest difficulty, and to have left them to seek aid in the common law rules of proceeding, in the discharge of the ordinary duties imposed on them by the 6th section of the act of 1825 above cited.^(a)

The act of 1827, in amendment of the last cited act, transfers to the county courts in terms all the jurisdiction which the act of 1825 had given to the probate courts, and which the act concerning last wills and testaments does not seem intended to restrain. The county courts then being...