delivered the opinion of the court.
This was a proceeding'under the statute (2 Wagn. Stat. 1368-;. § 29) to contest the validity of a paper produced and proved in, the-St. Louis Probate Court as the last will and testament of, the late *52Louis A. Benoist. After the case had been pending for some time in the St. Louis Circuit Court, and subsequently to the framing of issues, or rather the issue of devisavit vel non, the petition was dismissed without prejudice to the contestants3 rights and upon their motion. The cont-estees thereupon moved to set aside the order of dismissal, and to reinstate the cause so that they might proceed to make proof of the will in solemn form, as it is called. The motion was overruled, and the contestees bring the case here by appeal. Whether the court was warranted in dismissing the petition in the manner stated, is the question presented by the record for consideration.
If this were an ordinary suit between litigating parties, over which the Circuit Court had original jurisdiction, there could be no doubt of the right of the plaintiffs to dismiss or take a non-suit at any time prior to the final submission of the cause to the court or jury. (Gen. Stat. 1865, p. 662, § 47 : 40 Mo. 178 ; 43 Mo. 321; Fink v. Bruihl, 47 Mo. 173.)
But this is not an ordinary suit, nor had the Circuit Court original jurisdiction of its subject-matter. The original jurisdiction was with the Probate Court, where the will was originally probated and ordered to record. The proceedings were in rem, operating directly upon the wi'll — the res; and the transfer of the case to the Circuit Court did not change its character, or the character of its subject-matter. The effect of the contestants’ petition and the proceedings under it was to transfer that subject-matter from the Probate to the Circuit Court for adjudication in the latter court. There was no appeal in form, but the result of the process was the transference of the contest from an 'inferior to a superior court; and that may be done without a formal appeal, as was decided by this court in Dickey v. Malechi, 6 Mo. 182, and where it was also held that the jurisdiction of the Circuit Court in cases like the present is not original. The jurisdiction not being original, it must be derivative, in effect, as upon on appeal.
If the statute had provided for a transfer of this class of cases from the inferior to the superior court by appeal, and the case had been brought up in that way instead of by petition, no one would *53claim that the proceedings could be dismissed at the instance of the contestants without prejudice to them — that is, without an affirmance of the prior judgment.
In St. John’s Lodge v. Callender, 4 Ired. '342, the party proposing to establish the will moved for leave to take a nonsuit, and the motion was overruled by the trial court, and its action was sustained by the Supreme Court of North Carolina. In delivering the opinion of the court, Ruffin, C. J., discusses the subject as follows : “ We are not sure that we understand what was meant by the appellants asking leave to suffer a nonsuit, as the term is not appropriate to proceedings in the Probate Court. But from analogy to actions at law, we suppose the object was to withdraw from the court before a verdict was rendered on the issue devisavit vel non, so as to prevent the delivery of a verdict, and leave the party at liberty to institute another proceeding of the same kind. If so, we think it inconsistent with a proceeding of this sort and contrary to the nature of the jurisdiction of the court of probate. The instrument propounded is always brought into court in the first instance, and the jurisdiction is in rem., The inquiry is whether the party deceased died testate or intestate; and if the former, whether the script propounded be his will or a part of it or not. When once regularly raised, the court must pronounce on these questions without reference to the presence of this or that person. If a cause is about to be heard or under a hearing, and a party in interest is not furnished with full proof and has been surprised, his course is, for cause shown, to get an order for opening the case to further proof and deferring the pronouncing of sentence. * * * It is analogous to the trial of an issue out of chancery, only one is at the instance of the chancellor to satisfy his conscience, and the other the law compels the court of probate to make up in every case of a.disputed will. From the nature of an issue, he who alleges the affirmative opens the case, and for that reason the party propounding a will is commonly spoken of as plaintiff. But it is inaccurate; for, properly speaking, there is neither plaintiff nor defendant, but both sides are equally actors in obedience to the order directing the issue. In *54neither case is the party in the affirmative at liberty to withdraw and defeat a trial more than the party in the negative.”
In North Carolina it seems that the issue devisavit vd non is made up in the Probate Court and sent thence to the superior court for trial; while with us the same issue is framed upon the contestants’ petition. But this can make no difference with the proceedings subsequent to the making up of an issue. In either case the proceeding is in rem, and strictly of probate jurisdiction.
In Missouri and in a number of other States there are two modes of proving a will, one provisional and the other final. The first is denominated the common form, the second the solemn form. A will is proved in the common form when it is presented, proved and ordered to record, as provided in the thirteenth section of our statute of wills. 'That is or may be done in the absence of the parties in interest, and without citing them to appear. The validity of the will may nevertheless be contested, and the proof of it in solemn form required. ‘ ‘ When a will is proved in solemn form,” says Nisbet, J., in Brown v. Anderson, 13 Gra. 176, “ it is necessary that all parties interested be cited to witness the proceedings, that the will be produced in open court, that the witnesses be there examined, and that all parties in interest have the privilege of cross-examination ;” and that, in substance, is what is contemplated by the twenty-ninth section of our statute of wills. The proof in solemn form in this State is required only when a contest arises, and then the case is transferred to the Circuit Court in the mode provided by law (§ 29), as was done in the case at bar. The question here is — all the requisite parties being before the court, and every preliminary step having been taken — whether it lies with the contestants to defeat the whole proceeding by a voluntary nonsuit or dismissal. In my view every consideration of public policy is a,gainst the allowance of such claim. It is opposed to the authorities and in conflict with the policy and nature of probate proceedings of this character. It has repeatedly been held that the propounders of a will — those in the affirmative — cannot take a nonsuit, that it is the right of the contestants in such cases to *55insist on a verdict. (Roberts v. Trawck, 18 Ala. 86 ; St. John’s Lodge v. Callender, supra; Whitefield v. Hurst, 9 Ired. 175; and see Burrows v. Ragland, 6 Humph. 484-5; Etheridge v. Idley, 1 Bradf. 95; 2 Redf. Wills, 28 § 2, and note.) If the contestants may insist on the proceedings going forward to verdict, certainly those on whom is the burden of establishing an instrument assailed and drawn in question by the action of the contestants, ought to have the same privilege.
I think the Circuit Court should have disposed of the case upon its merits, and not permitted the contestants to go out of court without prejudice. It was exercising a branch of probate jurisdiction, and ought to have proceeded as it would have been the duty of the court of probate to have done had the statute authorized the same proceedings in the latter court, and the contest had been there pending.
The judgment will be reversed and the cause remanded. The defendant’s motion must be sustained and the cause reinstated upon the docket of the Circuit Court. The other judges concur.