
    Dickey and others v. Malechi.
    1. The lOtli sect, of the act concerning wills and testaments of Feb’y 19th 1835, (see R. C■ 1825, p. 792,) giving to the circuit court jurisdiction of tho probate of wills in certain cases, is not inconsistent with the 6th section of tho act concerning courts of 7th Jan’y 1825, (R. C, 1825, p. 270) providing,'that the several courts of pro bate shall have exclusive original jurisdiction in all cases in rela tion to the probate of last wills and' testaments, i^'c.” and the 4th sect- of the act of Jan’y 2nd 1827 by which the probate court was abolished, and all its jurisdiction transferred to the county court
    2. The circuit court, in entertaining a petition to establish a will,, which has been rejected by the county court, does notexercisc any original jurisdiction. The legislature may provide other modes, besides the ordinary form of appeal, by which tho controllinor power of the circuit court may be exercised, and in the 10th seet. of the act concerning wills and testaments', (R. C. 1825, p. 792,) they have made such provision.
    3- Whether a will is destroyed before or after tho death of tho testator, if destroyed without his knowledge or consent, it does not cease to bo his will, and its contents may be established by competent proof..
    4. One witness, is sufficient to establish the contents of a lost will.
    5. Probate may he granted of so much of a will ás can be proved.
    6. The rule, that when a demurrer is over ruled and not withdrawn it remains on the record a confession of the facts set forth in the pleading demurred to, does not apply where the court does not give, judgment on the demurrer hut suffers the parties to go before a jury on issues made up under the direction of the court, such subsequent action of the court airiounts to an implied withdrawel of the demurrer.
    7. The 10th soot, of the act of 1825, concerning wills and testaments, providing that the verdict of the jury shall be final as to the facts, precludes the Supreme Court from enquiry into the sufficiency of the evidence to sustain the verdict of the jury, in proceedings under that section; but as in other cases, if tho court permit illegal testimony to go to the jury, the Sup. Court has power to correct such error.
    8. The introduction of incompetent testimony, is as'mueh an error of law as the giving of wrong instructions,, and it is a matter which the Sup. Court will look into.
    9. A devisee, who is also heir at law, is a competent witness to establish the contents of a will lost or destroyed, when ho has no inter est in the event, or when tho establishment of tho will is against the interest he would have as heir.
   Opinion of the court delivered, by

Napton Judge.

One Antoine Simmino of St. Genevive County, about the 5th of January 1833, made his last wiii and executed it according to law, in tiie presence of two witnesses John Findly and John Blital Beauvais, and died about four or five days after making his said will. John Campbell and Ebenezer Dickey, who had married sisters of Simmino, were appointed Executors by the will. Immediately after tho execution of the will by Simmino, who was proved to have been of disposing mind at the time, b,e handed tho will to Campbell and requested him to place, it in his (Simmino’s) pocket book, and put the pocket book in his (Simmino’s) desk, which was in the room where he lay. Campbell did as he was directed: but on the morning after the death of Simmino; Campbell and Dickey, the executors named in the will, went to Simmino’s house to take possession of the will, but could not find it; nor has it ever been produced since. There was proof conducing to show that the will was in existence, on the evening before the testator died, and also on the morning-after, in the course of which it disappeared. It also appears from the testimony, that the provision of the will was in accordance with the previously fixed intentions of the testator frequently expressed to various individuals.

In January 1833,Ebenezer Dickey took out letters of administration upon the estate of Simmino, and proceeded to act under the same. About the first of March I S3 4, Francis Malechi, to whom a considerable real and personal property had been left by the will, by his Guardian Ichabod Sargent presented his petition to the County Court of St. Genevieve County, praying that the paper writing annexed to his petition, purporting to be the substance of the will of Simmino, might be admitted to probate, and calling on the heirs at law to shew cause &c. and requiring them to answer on oath touching the premises. The cause came on to a hearing in the County Court, and that Court .adjudged that there was no such last will and testament of Simmino as Malechi in his petition had alleged.

In June 1S36, the defendant in error, Francis Malechi, by his guardian, filed his petition in the Circuit Court, praying to have the will established, reciting the rejection of the . same by the County Court, and citing the heirs at law to appear. The -heirs at law, plaintiffs in error, appeared and plead first to the jurisdiction of the Court, pledging substantially, that the matters in the petition had been fully adjudicated in the County Court, and that, that Court had exclusive jurisdiction. To this the petitioner demurred, and the Court sustained the demurrer. The heirs at law then demurred to the petition, which demurrer was overruled: and afterwards they put in a plea in bar grounded on the former adjudication by the County court; to which plea, plaintiff in error demurred, and the demurrer was sustained. The case was then submitted tp the jury, upon an issue made up by the parties under the direction of the court; and a verdict was found for the petitioner: a new trial was granted at the instance of the defendants in error, and another issue made up, and upon that issue the jury found for the petitioner the will as annexed to his petition. A motion was made by the heirs at law for another new trial, ■and in arrest of judgment, both of which were refused, and the heirs at law have appealed to this court. There w.ere four bills of exceptions taken on the trial of the, issues in the circuit court containing the entire testimony; which seems to have consisted altogether of depositions.These depositions were taken by consent of parties, waving any exceptions to* their formality, as to time, place, notice &e-.; but the plaintiffs in error, reserving to themselves, the-privilege of objecting to the testimony on the trial for incompetency or irrelevancy.

The provisions of the will were established by the testimony of Joseph D. Grafton, who drew it up; neither of the subscribing witnesses being privy to its contents. The deposition of Ebenezer Dickey and John Campbel, the two executors named in the will; and who had married sisters of the deceased; were also read- in evidence, together with so much of the affidavit of Ebenezer Dickey, as related to his belief in the existence of a will, and that after the most diligent search, it could not be found. Objections were taken to the reading of the depositions on the ground- of incompetency and irrelevancy; and to the deposition of Ebenezer Dickey, because he was a party to the cause. After closing the testimony, the defendants asked the court for the following instructions to the jury.

“1. That if they do not believe- that the said supposed will “existed at, and after the death of the said Antoine Simmi-“no, they must find for the defendants.,

“S. That if they believe that the supposed will was lost, or “destroyed, before the death of the said Antoine Simmino, “by’his consent, connivance or direction, they must find for “the defendants.

“SiThat unless they believe the said paper purporting to be “the last will and testament of Antoine Simmino,. was sign“ed by said Antoine Simmino, with a full knowledge of all “its provisions, or by some person for him by his directions, “they must find for the defendants.

“4. That if the said supposed will was lost, or destroyed, “two witnesses who re^d the will prove its existence at “and after the death of the testator, remmembei its contents -'‘and depose to its tenor, are necessary to establish the same*

«5. That in the event of the loss or destruction of saiff “will, it will require the testimony of two witnesses to establish the contents thereof, and that one witness is ndt “sufficient.

se™0n ^ actcon-c. 1825, p. 7-cUcmt*0 court jurisdiction of the prohate of not mconsir.-gthVcetVf1* con corning Jan’ySi°825,' Pbf'provfd ding that the ofVprobatertS shaii have ex-na'l jurisdic-’ tion in all ca-sos relative to the probate testamenisS^ &c. and the act.Sof ian. 1837, by prohate court and aints risdiction the county court.

“6. That the whole provisions of the will must be estab •“.fished, and not a .part only, and if the jury are satisfied •“that the facts proved establish a part only of the provisions •‘of the will, they must find for the defendants.

The court gave the second and third instructions asked, and refused to .give the first, fourth, fifth and sixth instructions, and in lieu thereof instructed the jury, that one witness was sufficient to establish the contents of a will, after the excution of the will has been proven by two subscribing witnesses, and also that they might find such parts of the will as were proved without finding any thing in regard to the residue, and also that it was not necessary to prove that the will existed at, or after t he death of the testator.

Defendants excepted to the giving of the several instructions given, and the refusal to give those asked for, and after the verdict of the jury for the petitioner, moved for a new trial which was refused, and afterwards in arrest of judgment, which was also overruled. -

The appellants have made various points, on which they rely for a reversal of this judgment, but it is believed that though couched in different terms, and presented under a variety of aspects, they are substantially as follows.

1. That the circuit court had no jurisdiction over the subject matter presented in the petition of Francis Maleehi; but that the jurisdiction was exclusively in the county court.

2. That the circuit court erred in giving improper instructions, and kt refusing those asked for by defendants.

3 That the court admitted improper and incompetent testimony on the trial.

First. The.petition of Maleehi was founded on the 10 th section of the act respecting wills, (rev. co’25 p. 792,) this tion provides that, “where any will is exhibited to be proved, (in the county court) the court or clerk may immediately receive the proof and grant a certificate of probate; or if such will be rejected, a certificate of rejection. If any per- , ’ . , . J ~ sons .interested shall, within five years thereafter appear, rand by his petition to the circuit court of the proper county, contest the validity of the will proved; or pray to have a will proved that has been rejected, an issue shall be made Aether the 'writing produced be the will of the testator / or not, which shall be tried by the court, or by a jury, if either party require it.

Tlic circuit toruüiing a petition to which has beeu rejected by the county court, docs any original jurisdiction, ture may provide other modes, besides the ordi-appoah'by which the powerof^he circuit court may be exercised, and in the 10th sect: concerning Wlljs and tamronts, (R c.' 1885, p. 7-j^vVmade sack provi

mi . . . • , , ihe objection urged to tne exercise of jurisdiction in this case> i’ests on the provision of the act of 1825, by which, the courts of probate were invested with exclusive original jurisdiction in all cases, relative to the probate of last wills anc^ testaments> the granting letters testamentary, and repealing the same &c. and upon the act of 2nd Jan’y 1827, by which, the probate court was abolished and all itsjuvis-diction transfered to the county court.'

I do not see that'the circuit court in entertaining the petition of Malechi, did excercise any original rarisdiction. . . , Ihe respective provisions of the two acts above recited are 6n1;irely consistent with each other. The legislature may undoubtedly provide other modes besides the ordinary form °f appeal, by which the controlling power of the circuit court. may be exercised, and in the 10th section of the act respect-mg wills and testaments, they have made such a provision. jCu-rec^ ^ie petition of the rejection of the supposed will by the county court, with the annexation of the record of the judgment of the county court proving that fact was sufficient to give jurisdiction to the circuit court'. Thejudgment of the county court; in which they found that no such as the paper writing presented to them existed, was a certificate of rejection, sufficient to authorise the pe-titiouer to proceed under the 30th section, and demand a review of that judgment in the circuit court. The cicuit * court did not therefore err m overruling the demurrer to the Potion, and in sustaining the demurrers to the pleas of the defendants.

Second. The first instruction asked for by defendants, and refused by the court, was, that if the jury do not believe that . . , J t the Said supposed will existed at, ánd after the death of the Antoine Simmino, they must find for the defendants, This instruction ‘ was 'very properly refused by'the court, whether the will was destroyed' before, or after the death of the testator: ’if it was destroyed without his knowledge, or ■ . J ° consent; it did no t cease to' be his will; and its -contents could be established by competent proof. The cases cited at the bar in support of the principle laid down in this instruction have not been produced, but L apprehend that the courts have never gone farther than to declare that proof of the non existence of a will before the death of the testator might be presumptive evidence of its revocation aiid throw the burthen of proof on the party setting up the .will, it reqúi-ered satisfactory proof of its loss or destruction. But the • . . , , r .r . . . • ) principle laid down nrthe msructions asked, would open the door to knavery and fraud, and place it in the power of the dishonest to frustrate that disposition which every man has a right to make of his own property.^ Here the court gave the second insruction asked, which embraced the true law, and wdiich was much more applicable to the evidence, than the first could have been, admitting it to have been abstractly true. The testimony of Dickey, who was named • in the will as one of the executors, was that he saw the will about sun set, of the evening preceeding the morning when Sim-mino died: that he was with Simmino from the time he saw the will until Simmino died; and during that time, 14 , D . ramo expressed no ^satisfaction with the will, indeed, said nothing relating to it, and that Simmino could not have destroyed the will without his knowledge. The evidence of Findley, one of the subscribing witnesses was that Campbell, one of the executors named in the will, in a conversation had with witness on the morning of the funeral of the deceased, informed witness, that the will was in existence: that Sim-mino had made no alteration in the will, but that it remained the same as it was drawn by Mr. Grafton, and witnessed by him, Findley. Dickey also testified that on the day after the funeral, when he and Campbell went to get the will, for the purpose of proce'edingunderit,^ they were unableto find it and Campbell observed to him, “he wished he (Dickey) had come sooner, it would have saved''trouble, as the will not have been gone above half an hour”; Findley also testfi--ed that he heard ‘ Bazil Simmino/a brother of the deceased*. say, with an bath, that his sister, the wife of John'Oámpbell, would give him'the will, and he would'destroy it;1 givihg as-a reason for its destruction, that the vyill was “ungrateful”' towards the family of Antoine Simmino; as it gave the greater part of his property to a half negro.

a will is de-after t}ie dea-th of tiiG tcstiitor if destroyed tnoírfedi-for consent, it wiI1’ aiul its contents may be ostab-eo^potboat proof.

One witness 'is sufficient the contents ef a lost will.

be granted of so much of a will as can be proved.

The rule, that where a demurrer is drawn, it rerecord °a fession- of the facts sot forth in the ■ing demurred l0, does not apply where the court does not give judg-™ont on demurrer but suffers the boforeVjufy on issues der^thePdireo' ,of th.e subsequent courTa^ mounts to an cUawafof tho deinun-er.

Up.on this- state of evidence, the instruction given was surely strong enough for the defendants, “that if they be-fieve that the supposed will was lost or destroyed before the death of Antoine Simmino by his consent, connivance or direction, they must find for defendants.”

The fourth and fifth instructions are in substance, that two witnesses are necessary to establish the contents of a lost will. This point was expressly adjudicated upon a review 0f authorities by this court in the case of Graham and others vs. O’Fallon ex’r of Mullanphy, 4 Mo. Rep. 601. There was no error in refusing these instructions.

The next instruction, the re fusal of which is complained of, was that the whole provisions of the will must be established and not a part only and if the jury are satisfied that the facts proved establish a part only of the provisions of the will, they nulst find for the defendants. This point has ajs0 been settled by this court in the case of Jackson vs. ^ Jackson and others 4 Mo. Rep. 211, in which the court held that so much of the will as can be proved may be admitted to probate.

Third. The only point remaining for consideration is relative to the admission of improper testimony. It is urged by counsel for defendant in error, that inasmuch as the defendant below demurred to the petition, and the demurrer was overruled and never withdrawn, the demurrer remains on the record a confession of the facts of the petition, and this court is precluded from inquiring into the testimony either as to its sufficiency or legal admissibility. This was the strict rule of law in England and may be so here, but J apprehend that where the court does not give judgment f , , , , ~ . . , on the demurrer, Dut proceeds to suffer the parties to go be-a íury on theissues made up under the direction of the court it amounts to an implied withdrawal of the demurrer it is too ^ate now f°r the defendant in error to rely on the technical advantage of which he might possibly have . . T ° . f. „ himselt in the circuit court, it would be allowing hjm †0 take advantage of his own laches for had he moved for a judgment on the demurrer in the court below; the opposite party would no doubt have asked and obtained leave to withdrawrfheir demurrer, such being I believe the uniform practice in this state, restricted only by the power ■of the court to impose terms on the party asking for a leave to withdraw,

TheiOth act*’ef°f1835, concerning Wills and testaments, proof the jury shall factsTpre- t0 g^d0Q^®t from onquir-suifoiency^f the evidence voniloToftha jury,’. in Pr°-ceedmgs un-that sect.; or casestfthe court permit mony to g? to jury, Uw has power to BUth

It is also urged, that as there were two verdicts in this , , ° . . . ,, , . , case tor the petitioner, and consequently one new trial granted, the law in relation to the granting of a second 07 . . ° new trial, by which the court is restricted to cases where ■the jury have misbehaved or have erred in matters of law, .is applicable to the reviewing powers of this court. The statute under which this application was made is also referred to. That statute provides “that the verdict of the ay, or the judgment of the court,-shall be final as to the facts, saving to the court the right of granting anew trial as in other cases, and to either party, an appeal in matters of law to the Supreme Court, as in other cases”. By this I understand that this court cannot enquire into the suffieien-cy of the evidence to sustain the verdict of the jury, but' that, as in other cases, if the court have allowed illegal testimony to go to the jury, this court has power to correct , J ° mu ■ * J ■ ■ j. ■ ...... . such error. 1 he introduction oí incompetent testimony is as much an error of law as the giving of wrong instructions and it is a matter which the court will look into. The act in relation to new trials has no application, except to the objection urged in this court that the circuit court overruled this second application for a new trial. In support of which objection the plaintiff in error should have made out the existence of one of the two state of facts pointed out in the law to justify the granting of a second new trial.— Nothing appearson the record'to show either that there a : , , . r ,, • Cl was any misbehavior ot the jury, or any error ox law mitted by them. The jury are clearly not responsible for the correctness of the law as given by the court, but a failure to obey its instructions, or a misunderstanding of their meaning as evidenced by the facts found in their verdict, must be the error of law contemplated in this section of the statute, Hill vs Wilkins 4 Mo. Rep. 86.

The íntrodue-petent™tcsti" inony, jg as roríf law as thc giving oí etructions, & which the**01" Sup. Court will lookinto.

Believing then that this court is not precluded from examining the legality of the testimony offered on the trial I pro* ceed-to notice the portions of the written testimony objected to. The reading of all the depositions was objected to by the defendants below upon the general charge of in.competency and irrelavency. This court has often determined suc^ general and sweeping objections are insufficient, The party must point out the objections more specifically to authorize this court to interfere. I, however, see nothing illegal- or irrelevant in the testimony to which these general objection's were taken. But the defendants specified more particularly their objections to the admission of Dickey’s deposition; to the reading of this deposition, it appears from ^ excepti3ns>' defendants objected ‘as being both ir-relavent and incompetent, the said Dickey being, one of the defendants in the cause.” The decisions of this court would, I believe-, sustain me in saying that it does not appear from this record that Dickey was in fact a defendant and that the defendants assertion that he was, in the motion to exclude the deposition, was no proof of this fact and the court might have overruled the motion on the ground that the facts stated in the motion were not true. In Davidson vs. Peck (4 Mo. Rep. 438) it was held that where the circuit court overruled a motion to exclude certain depositions on account of alleged informalities in their execution, and the fact of such informalities existing is not preserved by hill of exceptions, this court cannot know but that the circuit court overruled the motion because the facts stated in the motion did not exist or were falsely stated. In Cozzens vs. Gillespie (4 Mo. Rep. 82.) the’defendant offered to read the deposition of one Walter D. Scott, and objections were made to the same on the ground that Scott was interested, and to show the interest, it was proved that ‘defendant and one Walter D. Scott had once been partners,” it was held that the identity of witness with the person who had once been the partner of the defendant was not proved, and could not be inferred from the iden tity of names, and the deposition was therefore admissible'. These cases seem to establish the 'insufficiency of the objections here taken to Dickey’s testkno-ny, but I am unwilling to to rest an opinion oh the technical difficulty sustained by these cases, conceiving that the facts stated in the motion in the one case and in the bill Of exceptions in the other, raised a violent presumption of their truth, especially as they were uncontfove'rted in the circuit court.

¿oir atTaw a, 0<>“PU" to establish wiifhwt destroyed, when ho ha3 no interest in ^®e®v“*’ tablishment A devisee, who is also of the will is against the interest ho would have as heir.

This deposition was admissible, as I think, upon other grounds. The proceeding had in this case, though the heirs at law are made nominal parties, was in truth in the nature of an exparte proceeding. It was a revival of the same proceeding in the circuit court which had been previously had in the county court. Theie can bo no question that in the county court the deposition or- answer of Dickey, of any other heir, could have been read unless objected to on other grounds than the mere fact that he had been cited as one of the heirs at law, and consequently stood on the record as one of the defendants. In truth, the citation, is for them to appear and show cause &c. why the paper shall nox be established. The same legal rules that govern, the investigation ill the county court must apply in the circuit court. I he deposition of Dickey was nothing more nor less than his answer on oath to certain interrogatories propounded by the petitioner. Whether he could be compelled to answer or not is no question raised by this record., No subpoena ad testificandum was issued. The deposition seems to have been voluntarily made, and whether admissible as evidence on the trial or not, must depend, not on the question whether he was a defendant, but whether there was no other objection to him on account of a personal disability or an interest in the event. The interest of Dickey was clearly against the party calling him — he was one of the heirs at law and from th e contents of the will as pro» ved by Mr. Grafton, his share of the estate, as heir,, would1® have greatly exceeded the trifling legacy which had been left him in the will. The principle decided in Graham vs. O’Fallon ex’r of Mullanphy, is there" applicable. On f r , 1 f 1 , . . „. , ground oi interest there could be no objection to Dickey even had he been a party de facto. _ It may be questioned whether he could not have voluntarily waived the privi-Position gave him and his deposition -be read, His admission could have been proved and why not his vol-.entary admission under oath. But whether a party in in-Dickeys testimony, whether in the shape of a deposition, in answer to interrogatories., oras an answer to the citation following the petition, was good evidence either in the county or circuit court, unless some other objection to it existed besides what is founded on the fact of his being a party.

Cole for Appellee.

1st. The circuit court had jurisdiction of the case.

2nd¡ The defendants as to the facts of the case are concluded by their demurrer on the record.

3rd. That -the .question “Testamentum vel non,” is a question .of fact not .to be enquired into by the -appellate court.

4th. The 'circuit court has committed no error in matter of law fhat will justify a reversal of <the judgment.

Scott and Z&ig.ler far Appellants.

1. That no legal will was .ever presented to the county court or clerk thereof to be probated, proved, or established, according to law.

Any other construction of the law would lead to intolerable consequences. A party seeking to establish a lost will is bound to cite the heirs at law. The relations of a testator are most likely to be the persons most conversant with his intentions and around and about his person and house during his last illness. If the testimony of all these persons must be excluded on the ground of their being parties, and they are necessarily made parties in such proceedings, it must become exceedingly difficult in most cases, and in many cases absolutely impracticable, to establish most of -the facts necessary to authorise the probate of a lost will. It places it in the power of the persons most likely to be interested in suppressing the will to shut out all investigation and shield themselves under a rule of law from all responsibility. Such a state of things could never have been contemplated either by our statute law regulating proceedings to establish wills, or sanctioned by the common law rules of evidence. Judgment affirmed.

2. There was no legal rejection of the said supposed will by the county court on which to found the application to have the same established in the circuit court on petition;

3. That the circuit court had no jurisdiction over the subject matter presented to them in the petition of said MaL echi to have the will established, but that the jurisdiction was exclusively in the county court.

4. There- was no evidence that the said supposed will existed at and up to the time of the death of the testator, or that any search or enquiry had been made for the original.

5. That the petition to-the circuit court to- establish the supposed will did not state that the will existed' at the time of the death of the-testator, and had not been destroyed or cancelled by himself, and that diligent search had been made-therefor.

6. That the. said petition to the circuit court did not state the whole provisions of the said supposed will, but the substance of particular provisions and in part only.

7. That there was not sufficient or competent proof of the contents of the said will for they must all be fully proved.

8. That the circuit court admitted improper and' incompetent testimony on the trial of the cause in the circuit court.

9. That the circuit court erred in overruling the- demurrer filed by the-defendants below to the-petition and exhibits of the petitioner.

10; That the circuit court erred in sustaining the-demurrer of the said Maleehi, the petitioner, to the plea in- bar of’ former recovery and adjudication filed by the defendants in the court below.

11. That the circuit court erred in setting aside the non suit for the reason that- no sufficient grounds were shewn, to justify the-court for so doing.

12; That the- circuit court ought to- have arrested the judgment on the reason^ filed, in. that behalf.

13. That the circuit eourt in the giving of some and refusing to give others of the instructions, asked’ to be- given or-rejected to the jury on the trial. See bill of exceptions Nos. 2 and 3.

14 That it is en.tirely too -uncertain from the testimony what ^ie severa] provisions of the will were, even supposing such .a will to have once existed.

■15. That unless the whole provisions of the will.are proved the court cannot give it the proper construction,, or carry into effect the intention of the testator, according to the statute.

16. That two witnesses are equally necessary to prove the contents of a last written will asm ;the case of anon*-cupative will. 
      
      Judge McGirk absent during the present term of this Court.
     