The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1896-03-27

persons purport!ng to consent thereto
and did not bind Elizabeth A. Smith CT
any other person whatever.
/ That the admission OF the will on
the stipulations and agreements OF a
portion Of the heirs OF Andrew j. Davis
was void; that the court had no juris-
diction. power or authority TO enter any
decree whatever against Elizabeth A.
smith or any other person other than
the parties thereto admitting the paper
| writing to probate on the stipulation or
agreement of the parties named there
IN; that the testimony Of neither OF the
subscribing witnesses to the alleged
VIII was given at the time of the pro-
/ bate thereof; that no testimony what
ever was taken on March q, 1895, as TO
| the validity OF the alleged will Of 1866
or the competency OF Andrew ]. Davis
20 make or execute a will or any other
1acts necessary to prove to entitle the
will to probate
That the court had no Jurisdiction.
power or authority to admit the will
on portion of the testimony taken on
a mistrial of the contests filed by II. A.
Root and Sarah NJ. Cummings: that
the court had no Jurisdiction, power or
authority TO annex a decree of distri-
! button to the order or decree admitting
the alleged win to probate; that not Ie-
gal notice was given of the application
80 NhN oNNAtC VI distribution or Indt IL
was contemplated: that the court had
no jurisdiction to appoint John II. Ley
son administrator; that the letters Of
administration granted to John A. Da-
Wis have never been revoked"
The second ground upon which the re-
vocation of the probate is asked is as
to the sufiiciency Of the proof of the al
legged will of July 20. 1866. The contest
ant alleges that IL was not shown at
the time Of the probate that the wit
nesses TO the will were not present in
the county of Silver Bow, or dead. or
had permanently removed from the
state; that 1t affirmatively appeared
from the testimony on file in the court
that the pretended will was not the
last will and testament of Andrew J.
Davis, deceased, but was a forged and
simulated document; that IL afiirma-
tlVely appeared by the testimony Of
fered and ruled admissible and sub
mitted To the jury at the trial that An
drew j. Davis had duly executed a last
VIII and testament in 1880. revolving all
VIII by him made at any time prior
thereto; that the burden OF proof was
upon the proponent, and the validity
OF the VIII was not established by
preponderance of evidence. and the
probate thereof should have been de-
MED; that no sufficient proof was had
OF the death of Andrew j. Davis. nor
- AiAo ANSihtANt III the county OF silver
Bow, nor that he left real and personal
property in the county, and that the
admission of such facts by Root and
Cummings on the trial OF their contest
did not constitute sufficient proof of
the facts as against the contestant or
any other person; that IL was not
shown that A. j. Davis at the time of
the execution of the will, was free from
menace, fraud and undue influence and
that the execution was the act of a free
and competent testator; that the will
was not duly or sufficiently proved be-
fore the court.
The third ground. after reserving all !
the rights and benefits of exceptions |
which may have been taken as to the |
jurisdiction of the courts and the valid |
ity of the probate of the will. alleges |
at some length that the will was forg- |
ed, that the names of the witnesses |
were forged, and that the will. If II /
ever had been genuine, had been re- |
Voked by a subsequent will executed in |
1880, and that the probated will was |
not the last will and testament of An |
drew j. Davis, deceased. All the facts, |
so far as known. concerning the will of /
1880, are set out A citation i'm the case |
was issued and made returnable on
Saturday, April 4, when an effort will /
be made to have set for a hearing the
question of the courts Jurisdiction.
Thompson Campbell of Butte has been
as associate counsel with j.
Smith.