Shock v. Berry
Citation | 285 S.W. 122 |
Decision Date | 14 June 1926 |
Docket Number | No. 15689.,15689. |
Parties | SHOCK v. BERRY et al. |
Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Boone County; D. H. Harris, Judge.
Will contest by Charles E. Shock against Henry Berry, C. W. Settle, executor, and others. From a decree setting aside the will, C. W. Settle, executor, appeals. Appeal dismissed.
Arthur Bruton, of Centralia, and Don C. Carter, of Sturgeon, for appellant.
North T. Gentry, of Jefferson City, for respondent.
This is a suit contesting the will of one Nancy I. Berry, who died September 9, 1924, while a resident of Boone county, Mo. The suit was brought by her son, who alleged in his petition that deceased was unduly influenced in making her will, and at the time thereof was a person of unsound mind and of not sufficient mental capacity to make a will.
The defendants, other than Henry Berry, Harrison Berry, and 0. W. Settle, executor of the will, are beneficiaries under the will. The two Berrys are the heirs of Jasper Berry, deceased, Mrs. Berry's last husband, whom she predeceased. Most of the other defendants are not heirs at law of the deceased, but are her nieces and nephews. Personal service was had upon the defendants Fannie Riggs, Dorcas Chrisman, Sallie Newman, Belle McCammy, John R. Younger, Nannie B. Hulen, and John A. Chrisman. Defendants Henry Berry, Harrison Berry, Dora Turner, and John Gay were duly and legally notified by order of publication. None of the defendants filed an answer except English Gay, Irene Burgess, and C. W. Settle, executor of the will. Defendants English Gay and Irene Burgess admitted in their answers that at the time deceased made the will the latter was not of a sound and disposing mind, that at that time deceased was unduly influenced, and they consented that the will be set aside. The answer of the defendant Settle, in his capacity as executor of the will, was a general denial, and asking that the will be decreed the last will and testament of the deceased. The reply was a general denial. There was a trial before a jury, resulting in a verdict declaring that the instrument was not the last will and testament of the deceased. The executor alone appeals.
Plaintiff has filed a motion to dismiss the appeal, for the reason that appellant is not such a party as is entitled to take an appeal in this proceeding. There is no doubt but that this point is well taken. It was held in Braeuel v. Reuther, 270 Mo. 603, 193 S. W. 283, 285, L. R. A. 1918A, 444, Ann. Cas. 1918B, 533, that an administrator should not be made even a nominal party to a will contest, that he has no interest whatever in such a suit. In an effort to distinguish the case at bar from those cited by respondent, appellant states:
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