McMahon v. McMahon

• Citation: 100 Mo. 97,13 S.W. 208
• Parties: McMAHON et al. v. McMAHON et al.
• Decision Date: 10 March 1890
• Court: Missouri Supreme Court

13 S.W. 208

100 Mo. 97

McMAHON et al. v. McMAHON et al.

Supreme Court of Missouri.

March 10, 1890.

WILLS — CONTEST — PROCEDURE.

In the contest of a will, under the issue of devisavit vel non, the court must hear the proof, and establish or reject the will, and contestant cannot take a voluntary nonsuit or dismissal.

Appeal from St. Louis circuit court; JAMES A. SEDDON, Judge.

This action was brought by Thomas H. McMahon and others against Abbie McMahon and others, to set aside the will of Patrick McMahon. From a judgment for defendants establishing the will plaintiffs appealed.

R. L. McLaran, M. F. Taylor, and Julian Laughlin, for appellants. Rassieur & Schnurmacher, for respondents.

RAY, C. J.

Plaintiffs bring this action in the circuit court of St. Louis to set aside the will of Patrick McMahon, which had been admitted to probate in the probate court of said city. After the issues were made up, plaintiffs filed their motion in writing to dismiss the cause, which, coming on for hearing, the court struck said motion from the files, and, plaintiffs declining to further appear, the court heard the evidence offered by defendants in support of the will, and entered its judgment, establishing the same as the last will and testament of said McMahon. Plaintiffs afterwards filed their motion for new trial, and appealed from the court's action in overruling the same. The only question now before us by this said appeal is whether the plaintiffs had the right to dismiss the suit. This, we apprehend, is no longer an open question in this state, in view of our express decisions that, upon the issues of devisavit vel non, the court should take the proof and establish or reject the will, and that in such proceedings the contestants cannot take a voluntary nonsuit or dismissal. Benoist v. Murrin, 48 Mo. 48; Harris v. Hays, 53 Mo. 90; Jackson v. Hardin, 83 Mo. 184; Hughes v. Burriss, 85 Mo. 665. The ruling of the circuit court is in conformity with our said decisions upon the same question, and, as we find nothing in the suggestions of counsel for plaintiffs herein of sufficient weight to require us to overrule our prior decisions upon this subject, we accordingly affirm the judgment of the circuit court herein.

All concur. BARCLAY, J., not sitting.