Swain v. Gilbert et al., 3 Mo. 347

M’Girk, C. J., delivered the opinion óf the Court. This is an appeal from the Circuit Court of Pike County, sitting as a Court of Chancery. Sometime heretofore Samuel Gilbert made his last will and testament duly attested, and died. The will was presented to the Probate Court, proved, and letters testamentary were granted; Swain and wife presented their petition to the Circuit Court as a Court of Chancery, to set the will aside.

The defendants demurred to the bill or petition, on the ground that the petition should have been presented to the law side of the Court, as a Court of law, and not as a Court of Chancery. The Circuit Court sitting in Chancery, sustained the demurrer and dismissed the petition. The only question for our consideration is, whether the proceeding authorized by our statute should have been a proceeding at law, or a proceeding in Chancery. We are of opinion the proceeding should have been at law. We are not able to see any distinction between this case and the case of Lyne v. Guardian et al, 1 Mo.

Rep. 410; that was a case exactly like this: in that case the question involved in this was fully considered. It was there decided that the party must proceed at law to set aside a will which has been admitted to probate by the Probate Court. We have seen nothing in the argument of this case to warrant us to overrule that decision,. The judgment of the Court below is affirmed with costs.