Executors of Howe v. Pratt

The opinion of the court was delivered by Williams, Ch. J. As a general rule, what is here termed a plea would undoubtedly be liable to the objections, which are raised against it, if there were anything before the court to which a plea would be required. But as the appellants have set forth no objections to the decree of the court of probate, and have made no allegation that any will was made by the deceased in his lifetime, it was not necessary for the appellees to do anything more, or to show any other reason for the affirmance of the decree of the probate court, than to make the general allegation which they have made. The allegation or plea was therefore sufficient, as the case then stood before the court, and the appellants, instead of demurring, should have stated some reasons or facts to show that the decree of the court of probate should be reversed. Whenever an appeal is taken from the sentence or decree of a court of probate, the person complaining of the decree should state, in writing, his objections thereto, and this lays the foundation for all the after proceedings. To these objections the appellee can answer, and thus present the questions to be decided, whether they be of fact or law. When the appeal is taken from the approval of a will, as it most commonly is, the objections filed present the questions which are to be decided, as to the due execution, the sanity of the testator, &c. This appeal is from the other side, and the objections filed should have averred the making and execution of the will. The answer to these objections would have raised all the questions, which are [257] intended to be litigated in this case. Unless the pleadings are altered, the decree of the court of probate must be affirmed. The appellants, by leave of the court, withdrew the demurrer, and filed their objections to the decree, and the issues formed thereon were sent to the county court for trial.