Nelms v. Brooks
Nelms v. Brooks
Opinion of the Court
delivered the opinion of the court.
Appellee, Mrs. Nora Brooks, filed a bill in the chancery court, praying for the partition of certain lands alleged to be the property of the deceased intestate, ancestor of herself and others named in the bill, and for an accounting. The bill also prayed for the cancellation of a certain instrument purporting to be the last will and testament of her deceased grandmother. It is alleged that her grandmother was mentally incapacitated to make a will, and that she was overreached by appellant and induced to execute the will.
A demurrer was filed to the bill, which was overruled. The chancellor refused to grant an appeal to settle the principles of law. Aftér the demurrer was overruled, complainant tendered an issue of devisavat vel non, and hearing of this issue was, by agreement, set for a certain day, and the defendants were granted time in which to file answer to the bill. In the meantime, and before the day set for the hearing- of the issue, appellant presented a petition for appeal to one of the judges of this court, which was granted.
It is contended that the demurrer should have been sustained, and we think this is true; but we can see no good reason now why the bill should be dismissed. The defendant is now treating the bill as a contest of the will,
The bill as drawn is undoubtedly open to criticism on account of multifariousness, hut to save time and unnecessary expense and delay, we think it will be proper to remand the case for a trial of the issue of devisavit vel non, and this alone.
We believe the defendants below will not be deprived of any substantial legal right by the adoption of this course. It seems to us that the interests of all parties to the controversy will be preserved and subserved by a trial of the one issue which stands at the threshold, the settlement of which will either end all further litigation, or open the door for a settlement of other matters of difference between the adversaries.
Reversed and remanded.
Reference
- Full Case Name
- T. H. Nelms v. Nora Brooks
- Status
- Published
- Syllabus
- 1. Equity. Bill. Multifariousness. Appeal and error. Demurrer. A hill in chancery praying for partition of certain lands alleged to he the property of a deceased intestate, ancestors of complainant and others named in the bill, and for an accounting, also praying for the cancellation of a certain instrument purporting to be the last will and testament of complainant’s deceased grandmother, is multifarious. 2. Appeal, and Error. Affirmance. Demurrer. Where complainants filed a bill seeking the partition of property, also an accounting, and the cancellation of an instrument purporting to be the will of her grandmother, and a demurrer to the bill was overruled and complainant then tendered an issue of devisavit vel non, and defendant was given time to answer, and one of the defendants was granted an appeal by a judge of the Supreme Court; held, that the action would be reversed and remanded for trial under the issue of devisavit vel non, and this alone as the defendants would not be deprived of any legal right by an adoption of this course.