ESTATE OF MARY CUNNINGHAM.
No. 7160--Dec. 5, 1878.
PRACTICE.--CONTEST ON PROBATE OF WILL.--The right of
heirs to revoke probate of will within the year specified, is the same
whether the issues
were tried by a jury or by the Court sitting without a jury.
AN APPEAL from a probate works a stay of proceedings.
Construing
sections, C. C. P., 946, 1327.
Robert Ash, for the husband.
J. F. Sullivan, for absentees.
Two papers were offered for probate; each claimed to be the last will. One appointed Rev. H. Gallagher to be executor, and gave the property to certain non-residents, heirs of deceased. The other appointed Patrick Cunningham, husband of the deceased, to be executor, and gave him all the property. A trial by jury was had, which resulted in sustaining the will in favor of the husband, and a decree was made, admitting that will to probate, and denying probate of the other paper. Upon the trial the Court appointed an attorney to represent the non-residents; and the attorney so appointed participated in the contest.
H. Gallagher gave notice of appeal, and filed a three
hundred dollar bond. The non-residents
then employed as their attorney the same gentleman who had been appointed, who,
within a year, on their behalf, and as their attorney by employment, filed
their petition for revocation of the probate of the will which had been
admitted. On return of the citation, the
executor, Cunningham, objected that pending the appeal the proceeding was
stayed. The objection was sustained by
the Court. Thereupon, H. Gallagher
dismissed his appeal. Cunningham then
objected, that the probate of the one will, and the denial of the probate of
the other, were preceedings in rem,
and the verdict of the jury was conclusive; that the sections of the Code
giving heirs right to contest the probate within a year do not refer to
contests tried before a jury.
By the COURT:
The effect of the trial was the same, whether the issues were tried by a
jury or by the Court. In either case,
the heirs have a year in which to move the revocation of probate.
Objection overruled.
Transcribed
by Sue Wood.
© 2007 Sue Wood.
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