In re Duty's Estate

27 Mo. 43

Opinion

Richardson, Judge,

delivered the opinion of the court.

The administration act of 1845 provides that if, after letters of administration are granted, a will of the deceased be found and probate thereof granted, the letters shall be revoked and letters testamentary, &c., shall be granted; and though the same statute gives the right of appeal from the county to tlie circuit court on orders revoking letters testamentary or of administration, the jurisdiction which the circuit court acquires on the appeal does not draw to itself the right to inquire into the character or sufficiency of the proof on which the county court acted in granting probate of the will.

An appeal will not lie from the judgment of the county court admitting a will to probate, and the 31st section of the act concerning wills prescribes the only mode by which the judgment of the county court- in rejecting or admitting a will to probate can be inquired into. The appellant could have opposed and contested, in the probate court, the validity of the will, or the sufficiency of the proof on which it was proposed to admit it to probate ; but, after it was established, the probate thereof was conclusive in a collateral proceeding, and, the will having been found and probated, the revocation of the letters of administration, which had been previously granted, followed by operation of law. The circuit court, on the appeal from the order revoking the appellant’s letters of administration, could not go behind the judgment of the probate court granting probate of the will; and the only questions which the appeal carried up were, not whether the proof was sufficient to authorize the probate of the will, but whether a will of the deceased had been found and probate thereof granted.

The other judges concurring, the judgment will be affirmed.