purpose of proving execution in such cases, evidence of the handwriting of the witnesses and the testator is admissible.*

The will may be established against the testimony of the subscribing witnesses, but to do so the proof must be clear. The fact that all of the witnesses do not remember all that occurred, or that they do not agree in their testimony, will not defeat the probate, if from all of the testimony, due execution and the testator's capacity appear.†

FORMALITIES

NECES

Sec. 1008. THE SARY IN CONTESTING A WILL.-While as a rule formal issues and pleadings are not required in a suit to contest the validity of a will which has been probated, yet some pleading on the part of the contestant is essential to show the grounds of the contest, and this depends upon the form of procedure in vogue where the contest is had. The pleading may be in the form of a petition, and as the question is the validity or invalidity of the will, it is usually not necessary to separately state the various grounds of attack.‡

But the State statutes may require the grounds of attack to be separately and specifically stated, and where

*McTaggart v. Thompson, 14 Pa. St. 149; Higinbotham v. Higinbotham, 106 Ala. 314; Crandall's Appeal, 63 Conn. 365. +Robinson v. Brewster, 140 Ill. 649; Mays v. Mays, 114 Mo. 536; Whitelaw v. Sims, 90 Va. 588; Berg's Est., 173 Pa. St. 647.

See form of Petition for Contest in back of this book; Fraser v. Jennison, 106 U. S. 191; Sinnett v. Bowman, 151 Ill. 146; Dew v. Reid, 52 O. S. 519.

this is the case evidence cannot be admitted on issues not

stated.*

The statutes provide that any person interested in the estate of the testator adversely to the will, or any person aggrieved by the dispositions in the will, may contest the same, but the whole question must be disposed of in one proceeding, and the court may order the joining of separate actions. A person may contest a will in which he is a beneficiary, where he would take more if it were denied probate.†

A person not interested or benefitted by the rejection of the will, as by taking part of the estate or obtaining the right to administer cannot attack the probate of the will. (Jele v. Lemberger, 163 Ill. 338; Lockhart v. Stephenson, 120 Ala. 641.) So the right to contest is so far personal, as not to survive where the person who might contest dies before suit is brought. (Stoors v. St. Luke's Hospital, 180 Ill. 368.)

One who has a right to contest the will, may by a valid contract not to contest estop himself from doing so; so the acceptance and retention with full knowledge of the facts which would authorize a contest, of a legacy under the will, estops such legatee from contesting the will.‡

*Wending v. Teeple, 144 Ind. 189; Barksdale v. Davis, 114 Ala. 623; Livingstone's Appeal, 63 Conn. 68.

+Shepard's Est., 170 Pa. St. 323; Lockard v. Stevenson, 120 Ala. 641; Murry v. Hennessy, 48 Neb. 608; Kostelecky v. Scherhardt, 99 Ia. 120.

Garcelon's Est., 104 Cal. 570; Gore v. Howard, 64 Ten 577; Madison v. Larmon, 170 Ill. 65; Bartlett v. Manor, 146

The executor under the will is the proper party to defend the will, and where there is no executor, an administrator with the will annexed may be appointed to defend the contest. (Crocker v. Balch, 55 S. W. Rep. 307. Tenn. 1900.) The beneficiaries under the will are necessary parties defendant, and this includes the husband of a legatee, and the grantee of real estate from a devisee under the will.*

A suit to contest a will admitted to probate must by statute be brought within a stated time, varying in the different States from one to five years after probate. It is the special statute fixing the limitation which governs, and after such time has expired the court has no jurisdiction to entertain a contest though the parties consent.† In some cases it is held that where the grounds of contest are fraudulently concealed from an heir until the limitation for the contest has expired, yet he may not contest. While other cases hold that for fraud or mistake the probate of a will may be set aside without regard to the time limitation.§

The statutes fixing the time within which contest

Ind. 621. Contra, Bates v. Smith, 3 Cin. L. B. 344 (Ohio). In this case the legacy under the will was less than it would otherwise have been.

*Moore v. Gubbins, 54 Ill. App. 163; Burnett v. Milnes, 148 Ind. 980; Roberts v. Abbott, 127 Ind. 83.

†Meyer v. Henderson, 88 Md. 585; Sharboro's Est., 68 Cal. 5; Nichol's Estate, 174 Pa. St. 405.

558.

Stowe v. Stowe, 140 Mo. 594; Luther v. Luther, 122 Ill.

Vance v. Upson, 64 Tex. 266; Snuffer v. Howerton, 124 Mo. 637. This rule is statutory.

must be begun, except persons who are out of the State, of unsound mind, infants and the like, who are given a stated time after the disabilities are removed to start the contest. These disabilities cannot be added together in order to enlarge the time within which the suit must be brought, as by adding years of absence from the State to the period of minority.'

As regards notice in contest suits, some States require that all parties interested must be made parties, plaintiff or defendant, and given actual notice or constructive notice, as by publication. In other States, where the contest, like the probate, is regarded as a proceeding in rem, and all parties are supposed to have notice in regard to the winding up of the estate, it is not necessary to give notice to the interested parties. Where the statutes prescribe the notice to be given, such notice is sufficient.‡

Sec. 1009. MODE OF PROCEDURE AT TRIAL OF CONTEST.-Though the presumption is in favor of the sanity of the testator, the proponents have the burden of proof as to the validity of the will, and are required under most statutes to make a prima facie showing of capacity and validity, having done this, it is then incumbent on the part of the contestants to of

*Powell v. Koehler, 52 O. S. 103. See Rev. Stat. of Ohio, Secs. 5866 and 5933.

†Reformed Church v. Nelson, 35 O. S. 688; McDonald v. McDonald, 142 Ind. 55; Moore v. Gubbins, 54 Ill. App. 163. Brigham v. Fayerweather, 140 Mass. 411; Miller's Est., 166 Pa. St. 97.

fer their evidence attacking the will, after which the proponents may offer rebutting testimony. The proponent thus having the burden of establishing the validity of the will, has also the right to open and close the argument.* The method of procedure is largely statutory and varies in the different States according to the terms of the statutes.†

Unless the statutes provide for a jury trial, or the probate court has the power to direct the issue of fact as to the validity or invalidity of the will to be tried by jury, a jury is not demandable as a constitutional right.‡ In most jurisdictions a jury trial is provided for in one way or another.§

The mode of proof in contest cases, must be in accordance with the rule prevailing where and when the will is presented for probate. But the fact that the law requires the will to be attested by a certain number of witnesses does not require the same number to prove it. Where the question raised at the contest is the incapacity of the testator to make the will in question, it is the capacity of the testator at the time of executing the will that is the point in issue. (Robinson v. Adams, 62

*Banning v. Banning, 12 O. S. 437; Bardell v. Brady, 172 Ill. 420; Sheehan v. Kearney (Miss.), 35 L. R. A. 102; Mears v. Mears, 15 O. S. 90.

Slingloff v. Brimer, 174 Ill. 561.

Page on Wills, Sec. 331; Cummins v. Cummins, 1 Marv. (Del.) 423, 31 Atl. 816; Loeser's Will, 167 Pa. St. 498.

§Robinson's Est., 106 Cal. 493; Camp v. Shaw, 52 Ill. App. 241; Medill v. Snyder, 61 Kan. 15.