Gamache v. Gambs

52 Mo. 287

Opinion

Wagnek, Judge,

delivered the opinion of the court.

The plaintiff was the devisee in the will of William M. Prevost, and presented the will for probate in the St. Louis County Probate Court, where it was rejected.

He then filed his petition in the Circuit Court to have the same established. On the trial he offered to testify as a witness and his evidence was ruled out on the ground that he was .incompetent to be introduced for that purpose. His rejection as a witness constitutes the only error complained of.

The precise question here raised was decided by this Court, at its October Term, 1872, in the case of Garvin vs. Williams, where it was held that in an issue to try the validity of a will, the beneficiaries under the will being parties to the action are competent witnesses in favor of the will. The real question in such a case is, whether there is a will or not, and upon that question all the parties have a right to testify.

That ease is decisive authority, and the judgment must be reversed and the cause remanded.

The other Judges concur except Judge Ewing.