Carpenter v. Booker

33 Miss. 45

• Court: Mississippi Supreme Court
• Decided: April 15, 1857
• Status: Published

Opinion

Fisher,, J.,

delivered the opinion of the court.

This was an application to the Probate Court of Tippah county, for an issue of devisavit vel non to the Circuit Court of said county, to try the fact whether a certain writing, was the last will and testament of one William Carpenter, deceased.

The executrix appeared, and pleaded in bar what is alleged to be a former judgment against the petitioners touching the matter in issue. The petitioners excepted to this plea, and the court, holding the exception as well taken, overruled the plea.

The exception it is said must be regarded as a special demurrer to the plea, and so regarding it, the plea, it is argued, was sufficient. We think the plea technically insufficient, as it does not offer to prove the matter pleaded by the record. We may, in conclusion, remark, that there is nothing in the record showing that any person opposed the probate of the will, at least the record contains no parties to any such proceeding.

Decree affirmed.

A reargument was asked for, but refused.