Jackson v. Jackson

• Citation: 4 Mo. 210
• Parties: JULIUS C. JACKSON v. JACKSON AND OTHERS.
• Decision Date: 31 August 1835
• Court: United States State Supreme Court of Missouri

4 Mo. 210

JULIUS C. JACKSON

v.JACKSON AND OTHERS.

Supreme Court of Missouri.

August Term, 1835.

APPEAL FROM THE CIRCUIT COURT OF PIKE COUNTY.

TOMPKINS, J.

This is a bill in chancery filed by one legatee and heir against the other legatees and heirs, to establish and carry into effect the provisions of a will, so far as its contents can be proved. The Circuit Court dismissed the bill and the plaintiff appeals to this court. The bill charges that the will was duly executed in the life-time of the testator, and left, at his death, in the custody of his wife; that since his death the will has been fraudulently taken from the possession of said widow and concealed, destroyed or lost, so that it cannot now be found by the complainant. The bill also alleges, that some of the legatees and heirs of the deceased live in Kentucky.

The sixth section of the act concerning Courts, &c., passed 7th January, 1825 (see Digest, p. 270), 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, &c. see the case of Mullanphy's will, Gra ham and others v. O'Fallon, 3 Mo. R. 507. There is nothing stated in this bill to vary it from the above cited case of Mullanphy's will. It is true that it appears in evidence that a part of the will could not be proved, and by a recital in one part of the bill, that some of the legatees and heirs reside in Kentucky. Had, however, both of these facts been stated in the bill, we are prepared to say that still the court of chancery would have no concurrent jurisdiction with the probate court. By the tenth section of the act concerning wills and testaments (Digest, p. 742), any person wishing to come in and contest the validity of a will, may do so within five years, but after that time, no one but infants, married women, and persons absent from the United States and their territories during the whole of said five years, &c., can be admitted to contest such will; so that the probate court (now County Court) can in this case grant as much relief as a court of Chancery.^(a)

The complainant has not produced one authority to show that a court of probate, acting under a law similar to ours, ever refused to grant probate of so much of a last will as could be proved when all could not be so; and we see no reason why that court should not grant probate of so much of the last will as could be proved.^(b) It is not alleged in the bill that ...