Drake v. Curtis

Henry, C. J. -This is an action of ejectment for the possession of a tract of land in Scotland county, which is a part of an eighty acre tract entered by one William Curry, who received a patent from the government" therefor. By his last will and testament, and the third clause-of the same, he manumitted..his slaves, Jack and Tena, and their children, eight in number, naming them. Heafterwards immigrated to the state of Iowa, Lse county, where he died, and his will was duly admitted to probate in the state of Iowa. Plaintiff offered a certified copy of the proceedings-of the probate court of Lee county, Iowa, and of the judgment of that court probating the will; but on objection made by defendant it was excluded. Other testimony was offered by plaintiff, but the trial resulted in a judgment for defendant, from which this appeal is prosecuted. The exclusion of the certified copy of the record of the probate of the will necessarily defeated the plaintiff’s recovery. That excluded, there was no testimony showing the title out of Curry’s heirs. Was it error to exclude the evidence % Since the decision oi Bright et al. v. White, 8 Mo. 421, it has been uniformly held by this court that “the record of the probate of a. will is a record and judicial proceeding within the meaning of the act of congress of May 26, 1790.” 13 Mo. 618 ; Lewis v. City of St. Louis, 69 Mo. 595 ; Bradstreet v. Kinsella, 76 Mo. 63. “And it is not necessary to the admission of such will with the probate thereof, that they shall have been recorded in this state under section [647] 34 of the statute of wills.” 'Wag. Stat. 1363. Cases above cited. As the judgment must for this error be reversed for a new trial, 'it will not be amiss to call attention to other errors which, we think, were committed and might be repeated in another trial. Plaintiff ’ s deeds from the devisees in Curry’s will were admitted without proof of the identity of the grantors with the devisees named in the will. In the third clause of the will the testator manumitted Jack and Tena and their children, Milly, Charles, Jeremiah, Delphy, Jacob, Sarah, Abraham and Dicky. By the fourth clause he gave all his property to Jack and Tena and their children, whom he had named in the preceding clause, and the effect was, therefore, the same as if the devise had been to Jack and Tena and the children by name. There was no necessity for proof of the identity of Jack, Jacob, Jeremiah, Sarah or Charles, who in those names executed the conveyances made by them; but Mary McDowell executed a deed claiming to be the daughter of Milly, and that deed was admitted without proof of Milly’s death, or that the said grantor was her only heir, or, in fact, asolé heir or joint heir with others ; and Bell Brown and her husband executed a deed, she claiming to be the ‘‘ Dicky ’ ’ named in the will, and it was admitted without any proof of that fact. No deed was shown from Delphy or Abraham. The judgment is re ■ versed and the cause remanded. All concur.