In re Duty's Estate

• Decision Date: 31 March 1858
• Citation: 27 Mo. 43
• Parties: IN THE MATTER OF MILTON DUTY'S ESTATE.
• Court: Missouri Supreme Court

27 Mo. 43

IN THE MATTER OF MILTON DUTY'S ESTATE.

Supreme Court of Missouri.

March Term, 1858.

1. Although an appeal will lie from an order of a Probate Court revoking letters of administration, yet, where the revocation is made for the reason that a will had been found and admitted to probate, the Circuit Court can not on such appeal inquire into the sufficiency of the proof upon which the Probate Court acted in granting probate of the will.

2. The validity of a will duly proven can be contested only in a proceeding instituted for that purpose under section 30 of the act concerning wills (R. C. 1845, p. 1083; R. C. 1855, p. 1571, sec. 30); an appeal will not lie from an order of a Probate Court granting probate of a will.

Appeal from St. Louis Circuit Court.

On the 22d day of June, A. D. 1850, letters of administration were granted to Thomas Harney upon the estate of Milton Duty. On the 5th of March, 1856, the Probate Court revoked the letters for the reason that a will was produced and admitted to probate. Harney appealed from the judgment of the court revoking his letters. The Circuit Court, on appeal, rendered its judgment revoking said letters, and from that judgment Harney has appealed to this court. The will provided for the manumission of certain slaves, who, by their counsel, appeared and contended for the revocation of said letters and the establishment of the will. At the trial below, there was offered in evidence, in their behalf, a transcript of the will and of the judgment of the Probate Court admitting the same to probate. Said transcript also contained the evidence upon which the will was admitted to probate, and the said Harney, by his counsel, objected to the admission of the said transcript of said will and judgment, unless the evidence aforesaid were offered in connection therewith; but the court overruled said objection and the appellant excepted to said ruling. The appellant then offered his letters of administration in evidence. This was all the testimony.

The court was asked to declare the law to be, that upon the evidence the court should find for the appellant; which declaration the court refused to make. The court rendered its judgment revoking said letters as aforesaid.Krum & Harding, for appellant.

I. An appeal for an order revoking letters of administration is expressly granted by statute. (R. C. 1845, p. 106, § 3.) It was the duty of the Circuit Court to hear and determine the cause anew. ( Id. p. 107.) This was not done; on the contrary, the Circuit Court refused to try the cause anew. The production of a will was not sufficient to authorize a revocation of letters of administration. ( Id. 67.) Not only must there be a will, but probate thereof must be granted before an order can be made to revoke letters of administration...