Jourden v. Meier
Decision Date | 31 October 1860 |
Citation | 31 Mo. 40 |
Parties | JOURDEN, Appellant, v. MEIER et al., Respondents. |
Court | Missouri Supreme Court |
1. A judgment of probate of a will is a judicial act, and, like any other judgment of a court of competent jurisdiction, it stands as a judgment binding upon all the world, until set aside in the mode and within the time allowed by law; its validity as a will can not be attacked collaterally.
2. The insufficiency of the proof on which the probate of a will is granted constitutes no valid objection to the admissibility in evidence of the record of probate.
3. A testator leaving him surviving a widow and a son, devised and bequeathed his property as follows: These were all the granting clauses of the will. Held, that it was the clear intent to disinherit the son J. J.; that by the will the widow took a life estate in the land with remainder to the step-son and step-grandson.
Appeal from Gasconade Circuit Court.
The facts in evidence sufficiently appear in the opinion of the court. The provisions of the will set forth below in the opinion of the court are all the granting provisions, except one with respect to the payment of debts and funeral expenses. The cause was tried by the court without a jury. The court refused the following declarations of law asked by the plaintiff:
The court rendered judgment for defendants.
Slater & Gale, for appellants.
I. The will was not properly proved. (R. C. 1855, p. 1569, 1571, § 14, 16, 27.) It was not attested by the seal of office as required. (1 Stark. R. 243; 8 Ind. 464; 1 Greenl. § 518; 8 Mo. 421.) If authenticated, the devisee had only a life estate. (2 Jarm. on Wills, 123.)
P. B. Garesché, for respondent.
I. The will was duly probated. The whole record was produced. The neglect of the clerk to append a certificate does not invalidate it. The defendants' assignors took a fee simple in remainder under the will.
This is an action brought by the plaintiff as heir at law of Joseph Jourden, to recover the possession of a tract of land claimed by the defendants as purchasers from the devisees of said Jourden. The suit was brought in 1859.
Two questions were raised at the trial; the one, respecting the proper construction of the will; the other, as to the right of the defendant to introduce in evidence the paper purporting to be the will of Joseph Jourden as a probated will. The last was of course preliminary to the other, and in truth presents the principal difficulty in the case.
The defendants produced, from the office of the clerk of Gasconade county, a paper purporting to be the original will of Joseph Jourden, with endorsements on the back in the handwriting of J. B. Harrison, then clerk of the county. The will bore date the 23d of December, 1844; was signed by the testator, in his mark, and attested by four subscribing witnesses. To this paper is appended the affidavit of two of the subscribing witnesses that the paper was signed by said Jourden and declared to be his last will and testament, and that the affiants signed the same as witnesses in his presence, and at his request, and in the presence of the rest of the subscribing witnesses, and that they also signed it in their presence and at the request of said testator. To this is added the certificate of the clerk: The following is the endorsement on the will: The following entries upon the records of the county court, at its April term, and on the first day thereof, were also read: “The clerk lays before the court his proceedings in taking proof of the last will and testament of Joseph Jourden, deceased, which proceedings were approved by the court.”...
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