The herald., 1894-03-30
POINTS ABOUT WILLS.
JUDGE VAN DYKE EXPLAINS
A LEGAL LOSS.
He Overrules a Demurrer in . Case
Where a Defendant Is Said
to Have Destroyed
Will.

Judge Van Dyke yesterday in depart
ment four Of the superior court passed
upon demurrer in the case of Sarah E.
Mcdaniel ct al. vs. J. H. W. Pattison
ct al.
In the course OF an opinion filed in the
matter he says that on the appeal in the
case to the supreme court the former
Judgment in favor OF the plaintiffs was
reversed on the ground chat the plain
tiffs then claimed as devisees under an
alleged unprobated will rather than as
heirs at law.
The supreme court said: "As against
the pleader we assume this document to
be valid, genuine will, which would be
probated in the regular way ii presented
in the probate court, and until present
ed and probate rejected these plaintiffs
as heirs at. law have no right in the
property which can be maintained either
in courts OF law or equity. We conclude,
therefore, that the complaint does not
state q cause OF action, and consequently
the decree has no sufficient support"
On denyirga rehearing the snpreme
court said the decree couldnot be modi-
fed, but held there was enough in the
complaint to justify an order allowing
tho plaintiffs to amend it.
The case was remanded with such di-
rections and the complaint was amended
asserting right by plaintiffs as heirs at
law, and q demurrer to 1t was sustained.
Judge Van Dyke holds that the second
amended complaint cures the defects of
the frat, which did not show why the
facts alleged as constituting the fraud
complained of were not discovered prior
to the time stated.
1t alleged that A. NJ. Pattison made
a will whereby he beaueathed all mis-
property to his wife, Mrs. Mary Patti
con, since deceased, for life, and after
her death equally between his two chill
dren, defendant J. II. ". Psttison and
plaintiff Sarah 4. Mcdaniel, and the
other plaintiffs as children OF deceased
daughter OF A. NJ. Patterson.
1t also alleged that after the death OF
A. NJ. Pattison ]. H. w. Pattison, the
defendant, obtained possession of the
will and fraudulently suppressed and de-
stroyed it to prevent it from ever being
admitted to probate and it never was
presented for probate.
This will was attested by R. G. Blair
and Frank Harrison at Carthage, Mo-,
whore it WAS executed. Blair drew it up
and knew it's contents but they were un-
known to Harrison.
J. II. w. Pattison denied that the
will disposed of the property as stated in
the complaint, also all knowledge of its
whereabouts.
The law requires that no will shall be
proved to be lost or destroyed unless it
is proved to have been in existence at
the time of the death of the testator, or
is shown to have been frauduently de-
stroyed during his lifetime, nor unless
its provisions are clearly and diatinctly
proved by at least two credible wit
neasea.
Judge Van Dyke Gays that from the
second amended complaint it appears
that although a will once existed, yet
that it cannot be proved as lost or de-
stroyed will under the code, and the re-
suit is the same as though A. NJ. Patti
con died intes ate.
The complaint also Gets forth the
reasons why the alleged facts constitut.
ing the fraud were not discovered and
known to plaintiffs before the time as
alleged. The court then overrules the
demurrer to the second am msnded com.
plant, and the motion to strike out is
denied.