Kenrick v. Cole
Supreme Court of Missouri
Appeal from St. Louis Circuit Court. I. The proceedings in the circuit court are in the nature of an appeal from the probate court and atrial de novo ; hence the issue and the final judgment must be the same. (Wagn. Stat., 1368, § 29; Harris vs. ILavs, 53 Mo., 94.) Therefore in the probate court the whole will must -be probated, though there are objectionable clauses in it. (Dayton’s Surrogate, p. 58 ; Redf.
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Appeal from St. Louis Circuit Court. I. The proceedings in the circuit court are in the nature of an appeal from the probate court and atrial de novo ; hence the issue and the final judgment must be the same. (Wagn. Stat., 1368, § 29; Harris vs. ILavs, 53 Mo., 94.) Therefore in the probate court the whole will must -be probated, though there are objectionable clauses in it. (Dayton’s Surrogate, p. 58 ; Redf. Wills, § 4, p. 51. vol. 3 ; Lorieux vs. Keller, 5 Iowa., 201; 10 Rich., S. Oar., p. 193.) II. At all events the'evidence of a secret trust should have been excluded, because declarations…
1Opinion of the CourtWagner, Judge
This was a proceeding by the plaintiff to establish the tenth clause of the will of Mary L. Lamarque, deceased. It seems that when the will was originally presented to the probate court all the other clauses were duly probated, but the tenth was rejected as being illegal and void. The validity of that clause is now the question presented for our determination. It reads as follows, to-wit:
“10. All the remainder, rest and residue'of the estate, real, personal and mixed, whereof I shall die seized, entitled or possessed, including herein also everything which, though herein disposed of, may bjr…
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