Loosemore v. Smith

• Decision Date: 16 February 1882
• Citation: 11 N.W. 493,12 Neb. 343
• Parties: ALICE LOOSEMORE, PLAINTIFF IN ERROR, v. WILLIAM SMITH AND OTHERS, DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

11 N.W. 493

12 Neb. 343

ALICE LOOSEMORE, PLAINTIFF IN ERROR, v. WILLIAM SMITH AND OTHERS, DEFENDANTS IN ERROR

Supreme Court of Nebraska

February 16, 1882

ERROR to the district court for Otoe county. Heard below before POUND, J.

AFFIRMED.

Watson & Wodehouse, for plaintiff in error.

Edwin F. Warren and F. E. Brown, for defendants in error.

OPINION

MAXWELL, J.

This is a petition in equity to set aside the will of one Thomas Smith, deceased, which will was admitted to probate in the county court of Otoe county, on the 31st day of December 1879. The question to be determined is, is the probate of a will conclusive in the absence of a statute authorizing the filing of a petition in equity to set it aside? In other words, in the absence of a statute conferring authority, has the district court original jurisdiction in such case?

Section 143 of chapter 23, Comp. Statutes, entitled Decedents, provides that: "No will shall be effectual to pass either real or personal estate, unless it shall have been duly proved and allowed in the probate court as provided in this chapter, or on appeal in the district court, and the probate of the will, of real or personal estate, as above mentioned, shall be conclusive as to its due execution."

In the case of Tarver v. Tarver, 34 U.S. 174, 9 Peters 174 it was held that an original bill would not be sustained on an allegation that the probate of the will was void; that if any error was committed in admitting the will to probate it should have been corrected on appeal. To the same effect is the Broderick will case. 21 Wall. 504.

In Bumstead v. Reed, 31 Barb. 661, it was held that where, upon an application to a surrogate for probate of a will and for letters testamentary thereon, the residence of the testator at the time of his death, in the county of such surrogate, is plainly averred in the petition, and is not in any way controverted, but is substantially admitted by all the parties interested in said bill, and is practically established by sufficient evidence, as a fact, by that tribunal, that court has jurisdiction of the case; its determination is conclusive as to the validity and probate of the will, and cannot be examined or assailed in any collateral proceeding, or in any other tribunal of original jurisdiction.

In Matter of will of Warfield, 22 Cal. 51, it was held that where the probate court acquires jurisdiction to probate a will by the presentation to it of a proper petition for that purpose, and the publication of notice of the time of proving the will, and afterwards in such proceeding admits the will to probate, its determination is final, except upon a direct proceeding by appeal, or otherwise, to reverse it, and cannot be questioned collaterally. To the same effect is Rogers v. King 22 Cal. 71. State v. McGlynn, 20 Cal. 233. Castro...