Estate of Cunningham , 1 Myrick 214 ( 1878 )

Two papers were offered for probate; each claimed to be the last will. One appointed Rev. H. Gallagher to be executor, and gave the property to certain non-residents, heirs of deceased. The other appointed Patrick Cunningham, husband of the deceased, to be executor, and gave him all the property. A trial by jury was had, which resulted in sustaining the will in favor of the husband, and a decree was made, admitting that will to probate, an‘d denying probate of the other paper. Upon the trial the Court appointed an attorney to represent the non-residents; and the attorney so appointed participated in the contest.

H. Gallagher gave notice of appeal, and filed a three hundred dollar bond. The non-residents then employed as their attorney the same gentleman who had been appointed, who, within a year, on their behalf, and as their attorney by employment, filed their petition for revocation of the probate of the will which had been admitted. On return of the citation, the executor, Cunningham, objected that pending the appeal the proceeding was stayed. The objection was sustained by the Court. Thereupon, H. Gallagher dismissed his appeal. Cunningham then objected, that the probate of the one will, and the denial of the probate of the other, were proceedings in rem, and the verdict of the jury was conclusive; that the sections of the Code giving heirs right to contest the probate within a year do not refer to contests tried before a jury.

By the Court:

The effect of the trial was the same, whether the issues were tried by a jury or by the Court. In either case, the heirs have a year in which to move the revocation of the probate.

Objection overruled.