Trotters v. Winchester

1 Mo. 413

• Court: Supreme Court of Missouri
• Decided: November 15, 1823
• Status: Published

Opinion

M’Girk, C. J.,

delivered the opinion of the Court.

This was a bill in Chancery, in the Circuit Court of New Madrid county. A decree was there given for the defendant in Chancery, and an appeal taken to this Court. This bill seeks to set aside a will, whereon probate was granted, on the ground that two of the subscribing witnesses were incompetent, because they were devisees and legatees. That such witnesses are incompetent, there can be no doubt. But this is no case for Chancery. The remedy is at law. The case of Tyne and Humphrey, decided at this term of the Court, governs this case. The Couit below, on the hearing, should have dismissed this bill; and because the Court did not do so, the decree is erroneous.

The decree is reversed, and the appellant recover his costs in this appeal •>. the complainant’s bill is dismissed without prejudice, and the defendant in the Court below recover the costs of that Court.