unfair and invalid upon equitable principles which may be presented as a defense.61 Where one entitled to contest a will enters a personal appearance in the matter prior to the admission of the will to probate and expressly consents to its admission, in the absence of fraud the decree of the probate court accepting the will is conclusive upon such party and he can not thereafter contest the validity of the instrument or of the decree admitting it. In such a case the court has jurisdiction of both the subject matter and the parties.62 §1329. Objections to Probate and Petition to Revoke Letters Not Involving Validity of Will. In a will contest the strict issue is the validity of the will. Objections, however, may be made which do not involve such matter. First, when a will is offered for probate, or an application is made for letters of administration in the event of intestacy or with the will annexed, the facts which give the court jurisdiction must be shown.63 Where a petition is filed either for letters testamentary or of administration, the court must not only have jurisdiction, but the statutory requirements as to notice and the like must have been fully complied with. Objections may subsequently be raised by interested parties on the ground that the notice required by law had never been given, and it is said that such notice is neces 61 Estate of Garcelon, 104 Cal. 570, 43 Am. St. Rep. 134, 32 L. R. A. 595, 38 Pac. 414; Estate of Edelman, 148 Cal. 233, 113 Am. St. Rep. 231, 82 Pac. 962; Fisher v. Clop ton, 110 Mo. App. 663, 85 S. W. 623. 62 Camplin v. Jackson, 34 Colo. 447, 83 Pac. 1017. 63 See §§ 1298-1300. sary to establish the court's jurisdiction. Objections may also be raised prior to the granting of letters testamentary or of administration as to the competency of the petitioner to the appointment. Such objections involve the question as to who may act as executors or administrators, a matter previously covered.65 Similar questions may arise under a petition to revoke letters testamentary or of administration alleging incompetency, fraud, neglect, mismanagement, waste or the like. Such matters do not involve the validity of the will. § 1330. Grounds upon Which Validity of Wills May Be Contested. The court having jurisdiction of the subject matter and the parties, the issue in a will contest is the validity of the will, and it is the same no matter how or where the contest is instituted, so long as instituted by the proper parties in the proper court within the time limited by statute. The issue is the same whether presented in the probate court or in a court of law or equity, if presented to the court having jurisdiction.66 The issue of the validity of the will involves all those matters which are necessary in order to constitute the instrument presented the final intention of a qualified testator. This does not involve the construction of the 64 Floto v. Floto, 213 Ill. 438, 72 N. E. 1092, and cases cited therein. See, also, Heminway v. Reynolds, 98 Wis. 501, 74 N. W. 350. 65 See §§ 1191-1215. 66 As to jurisdiction in matters of probate, see §§ 1298-1300. As to contests in courts of law or equity, see §§ 1319-1324. As to construction of statutes allowing contests in courts of equity, see §§ 1321-1324. Note. The matters pertaining to the burden of proof and rules of evidence regarding the various issues arising in will contests will be found treated in connection with such subjects in Volumes One and Two of this work. terms of the will, but merely its validity as a testamentary instrument, irrespective of the dispositions which it makes. In order to establish such invalidity, the contestant may allege and show: first, that the maker of the will at the date of its execution was laboring under legal disabilities which deprived him of the power to make a valid will;67 second, that the testator at the date of the execution of his will was not possessed of the mental capacity necessary to make a valid testament;68 third, that the statutory requirements regarding the due execution of wills were not fully complied with;69 fourth, that the will was the result of fraud or undue influence practiced upon the testator, or of a mistake on his part, which matters are interrelated and to an extent involve mental capacity, yet each is distinguishable from the other;70 fifth, that the instrument presented is a forgery;"1 and sixth, that the instrument presented has been revoked and not revived or republished.72 67 As to legal disabilities imposed upon certain persons, see §§ 297-325. For forms of petitions contesting wills on the various grounds herein mentioned, see, this volume, Appendix, Part Two, No. 36. 68 As to mental capacity necessary to make a valid will, see §§ 326-355. As to the rules of evidence regarding testamentary capacity, see §§ 356-403. 69 As to the signature of the testator, see §§ 404-442. As to number and character of witnesses required for the execution of wills, see §§ 443-447. As to the acknowledgment of his signature and publication of the will by the testator, see §§ 468483. As to attestation and subscription by witnesses, see §§ 484-513. As to nuncupative wills, see §§ 159-190. 70 See §§ 573-619. 71 See §§ 602, 605-607, 618. 72 As to revocation and alteration of wills, see §§ 514-561. As to republication of wills, see §§ 562-572. As to revocation of one will by a later will which was thereafter lost or destroyed, see §§ 1309-1311. § 1331. Pleadings in Will Contests. The grounds of contesting the validity of a will should be set forth in writing and filed in the proper court.73 The ordinary rules regarding pleadings apply. The contestant should neither allege mere matters of evidence nor legal conclusions, but should set forth the ultimate facts upon which he relies." A copy of the contest or a citation to appear must be served on the one petitioning for letters or named as executor in the will, and generally upon the heirs and others interested in the estate and under the will, who are residents of the jurisdiction wherein the matter is to be heard. The giving of such notice is frequently regulated by statute. The failure to serve a copy of the contest or to give notice thereof as required by law will render any proceedings or decree nugatory as to those not served or notified;75 however, those duly served or notified are bound." The court is authorized to cause to be brought into court all persons necessary to a complete adjudication of the matter."77 Interested parties, if they so desire, may put in an appearance and join with the contestants. Those wishing to sustain the will may serve and file their reply or answer to the contest. Unless the statute otherwise directs, the pleadings and issues in a will contest are 73 Summers v. Copeland, 125 Ind. 466, 25 N. E. 555. As to forms of petitions for contesting wills on the various grounds, see Appendix, Part Two, No. 36, this volume. 74 Estate of Burrell, 77 Cal. 479, 19 Pac. 880; Estate of Sheppard, 149 Cal. 219, 85 Pac. 312; Taylor v. Nuttle, 62 Md. 342. See, also, § 619. 75 Floto v. Floto, 213 Ill. 438, 72 N. E. 1092; Heminway v. Reynolds, 98 Wis. 501, 74 N. W. 350. 76 Flood v. Kerwin, 113 Wis. 673, 89 N. W. 845. 77 Estate of Stewart, 100 Cal. 246, 34 Pac. 706; San Francisco Protestant Orphan Asylum v. Superior Court, 116 Cal. 443, 48 Pac. 379. made up as in ordinary actions in which similar issues may arise.78 Where the statute prescribes the pleadings and manner of procedure, general rules are inapplicable.79 §1332. Trial by Jury. The right to a trial by jury of the issues involved in a will contest is not an inherent right, and in the absence of a statute so providing, a jury trial can not be demanded, or, rather, it is a matter within the discretion of the court.80 This is especially true where the contest involves matters of equitable consideration such as fraud, mistake, misrepresentation and undue influence.81 But although the parties are not entitled to a jury trial, yet if one party demands a jury and the demand is granted over the objections of the adverse party, the one so demanding the jury can not thereafter raise the objection that the matters were of equitable cognizance and should have been tried by the court alone, even though the verdict of the jury is against him.82 The matter of the trial of issues involved in a will contest by a jury is, however, very largely regulated by statute. 83 78 Estate of Flint, 100 Cal. 391, 34 Pac. 863. 79 Dew v. Reid, 52 Ohio St. 519, 40 N. E. 718. 80 Estate of Dolbeer, 153 Cal. 652, 658, 15 Ann. Cas. 207, 96 Pac. 266; Martin v. Martin, 74 Ill. App. 215; Duffield v. Walden, 102 Iowa 676, 72 N. W. 278; Parker v. Simpson, 180 Mass. 334, 62 N. E. 401; Bradley v. Woerner, 46 Mo. App. 371. 81 Parker v. Simpson, 180 Mass. 334, 62 N. E. 401, 82 Thorne v. Cosand, 160 Ind. 566, 67 N. E. 257. 83 Cal. Code Civ. Pro., § 1330; Estate of McKenna, 143 Cal. 580, 77 Pac. 461; Smith v. James, 74 Iowa 462, 38 N. W. 160. Where the statute provides that in all cases of petitions to revoke the probate of a will wherein the original probate was granted without contest, either side may demand a trial by jury, if there be a contest before probate, the court in its discretion in a contest after probate may deny the demand for |