Benoist v. Murrin
Supreme Court of Missouri
Appeal from St. Louis Circuit Court. I. The issue devisavit vel non having been regularly raised by the parties contestant, the executor becomes the propounder of the will and actor in the proceeding, which is in the nature of a proceeding in rem. Unlike an ordinary suit between indi viduals, it is inaccurate, and a misconception of this statutory proceeding, to call either of the parties plaintiffs or defendants.
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Appeal from St. Louis Circuit Court. I. The issue devisavit vel non having been regularly raised by the parties contestant, the executor becomes the propounder of the will and actor in the proceeding, which is in the nature of a proceeding in rem. Unlike an ordinary suit between indi viduals, it is inaccurate, and a misconception of this statutory proceeding, to call either of the parties plaintiffs or defendants. Both sides are equally actors, and the question of will or no will having been regularly raised, neither party is at liberty to withdraw and defeat the trial; on the contrary, the…
1Opinion of the CourtCurrier, Judge
This was a proceeding'under the statute (2 Wagn. Stat. 1368-;. § 29) to contest the validity of a paper produced and proved in, the-St. Louis Probate Court as the last will and testament of, the late *52Louis A. Benoist. After the case had been pending for some time in the St. Louis Circuit Court, and subsequently to the framing of issues, or rather the issue of devisavit vel non, the petition was dismissed without prejudice to the contestants3 rights and upon their motion. The cont-estees thereupon moved to set aside the order of dismissal, and to reinstate the cause so that they might proceed…
2Cases cited6 opinions
- Downing v. StillSupreme Court of Missouri · 1869
- Dickey v. MalechiSupreme Court of Missouri · 1839
- Nordmanser v. HitchcockSupreme Court of Missouri · 1867
- Collier v. Idley's ExecutorsNew York Surrogate's Court · 1849
- Fink v. BruihlSupreme Court of Missouri · 1870
1 more not listed; retrieve them via the Exa API.
3Cited by28 opinions
- State Ex Rel. Gott v. Fidelity & Deposit Co.Supreme Court of Missouri · 1927
- Teckenbrock v. McLauglhinSupreme Court of Missouri · 1908
- State ex rel. Hamilton v. GuinotteSupreme Court of Missouri · 1900
- Sawyer v. WhiteCourt of Appeals for the Eighth Circuit · 1903
- Simms v. ThompsonSupreme Court of Missouri · 1922
23 more not listed; retrieve them via the Exa API.