proof that the loss or destruction was subsequent to the testator's death, or without his consent.17 Ordinarily the burden of proof is on the propounders of a lost will to show that it was in existence at the death of the alleged testator, or was destroyed in his lifetime without his consent or knowledge, in order to overcome the presumption of revocation.18 Where the contents of a lost will have been found, admitted to probate, and recorded by the probate court, the record is prima facie evidence in a future proceeding to contest the validity of the will not only of its due execution and attestation but also of its contents, and the burden of proof is then upon the contestant of the will to establish its invalidity, by evidence that it had been revoked by the testator by tearing, canceling, obliterating, or destroying it with intention to revoke it.19 Who May Contest Wills 389. In General.-In order that a person may contest a will it is necessary that such person shall have some interest in the estate which may be affected by the probate of the proposed will.20 Furthermore such interest must be pecuniary and one detrimentally affected by the will. One who has a mere sentimental, but no pecuniary, interest cannot bring or maintain a suit to contest the validity of a will. When the parties who might contest a will are numerous and it is impracticable to bring them all before the courts, representatives of the group may be permitted to bring the contest in behalf of the entire group. When a contest of a will is successfully maintained at the instance of one or more of several persons interested, the will may be set aside in toto, thus benefiting the other heirs. It is generally considered competent for an infant, appearing by next friend, to contest a 3 383; In re Miller, 49 Ore. 452, 90 Pac. 1002, 124 A. S. R. 1051, 14 Ann. Cas. 277. 17. Scott v. Maddox, 113 Ga. 795, 39 S. E. 500, 84 A. S. R. 263. 18. Notes: 38 L.R.A. 434; 50 L.R.A. (N.S.) 866. 19. Behrens v. Behrens, 47 Ohio St. 323, 25 N. E. 209, 21 A. S. R. 820. 20. Lockard v. Stephenson, 120 Ala. 641, 24 So. 996, 74 A. S. R. 63; Braasch v. Worthington, 191 Ala. 210, 67 So. 1003, Ann. Cas. 1917C 903 and note; State v. Superior Ct., 148 Cal. 55, 82 Pac. 672, 2 L.R.A. (N.S.) 643; Meyer v. Fogg, 7 Fla. 292, 68 Am. Dec. 441; Campbell v. Fichter, 168 Ind. 645, 81 N. E. 661, 11 Ann. Cas. 1089; Thompson v. Turner, 173 Ind. 593, 89 N. E. 314, Ann. Cas. 1912A 740; Wells v. Wells, 4 T. B. Mon. (Ky.) 152, 16 Am. Dec. 150; State v. McQuillin, 246 Mo. 674, 152 S. W. 341, Ann. Cas. 1914B 526; Sears v. Sears, 77 Ohio St. 104, 82 N. E. 1067, 11 Ann. Cas. 1008, 17 L.R.A. (N.S.) 353; State v. Lancaster, 119 Tenn. 638, 105 S. W. 858, 14 Ann. Cas. 953, 14 L.R.A. (N.S.) 991. Note: L.R.A.1918A 448. 1. Selden v. Illinois Trust, etc., Bank, 239 Ill. 67, S7 N. E. 860, 130 A. S. R. 180 and note. 2. Chilcote v. Hoffman, 97 Ohio St. 98, 119 N. E. 364, L.R.A.1918D 575. 3. Randolph v. Lampkin, 90 Ky. 551, 14 S. W. 538, 10 L.R.A. 87. 4. Note: 49 A. S. R. 710. will, but it has been held that a guardian of an infant, in the absence of special statutory authority, has no power to maintain in his own name, on behalf of his ward, an action to contest a will.5 Where an adopted minor who, by the laws of the state, is entitled to succeed to the estate of its adopting parent, does not contest a will of such parent, his other relatives have no capacity to contest the will. 390. Heirs and Next of Kin; Beneficiaries.-The heirs of a testator, who in case of intestacy would have shared in the estate, but are disinherited or given a smaller amount than they would otherwise take, have, of course, such interest as entitles them to contest the will.7 And the same rule applies as to the next of kin of the testator, entitled to share in his estate in the event of intestacy. It is also well estab lished that persons who are beneficiaries in a will have such an interest as entitles them to contest another alleged will of the same testator which would destroy or reduce their share in his estate. It sometimes happens that a beneficiary in a will, though not immediately entitled to share in the estate in case of intestacy, would probably at some future time, through heirs, or next of kin of the testator, receive, if there were no will, a larger share of the property than is given him by the will. And in view of this contingency, such beneficiaries have in some instances attempted to annul the will, basing their right of contest on the ground that they are beneficiaries and therefore "interested in the will" within the meaning of the statutes. But the authorities generally hold that the interest in a will which one has as bene-. ficiary therein is not of itself such an interest as entitles him to contest the will.10 391. Necessity for Return of Benefit Received under Will.-As a general rule, one who has received a benefit under a will cannot thereafter contest its validity.11 This rule is founded on the doctrine of election discussed elsewhere in this article, 12 and is subject to the qualification that if the benefit was received without a knowledge of his right to elect between the benefit so conferred and of his right to the property outside of the will, or he was induced by fraud or deception to accept the benefit conferred, he can revoke the election and contest the validity of the will.13 This qualification of the general 7. Braasch V. Worthington, Ala. 210, 67 So. 1003, Ann. Cas. 1917C 903; Meyer v. Fogg, 7 Fla. 292, 68 Am. Dec. 441; Watson v. Alderson, 146 Mo. 333, 48 S. W. 478, 69 A. S. R. 615. 8. Notes: 130 A. S. R. 188; L.R.A. 1918A 452. 9. Notes: 130 A. S. R. 195; L.R.A. 1918A 470; Ann. Cas. 1917C 906. 10. Note: L.R.A.1918A 473. 11. Stone v. Cook, 179 Mo. 534, 78 S. W. 801. 64 L.R.A. 287. Note: 130 A. S. R. 216. 12. See supra, par. 317 et seq. Notes: 130 A. S. R. 188; E.R.A. Cas. (D. C.) 585, Ann. Cas. 1913E 1918A 452. 1179 and note; Medill v. Snyder, 61 rule, however, is subject to the further qualification that as a condition precedent to his right to contest, he must restore the benefit received.14 Accordingly it has been held that a widow cannot maintain a suit to set aside her husband's will while retaining the personal property taken by her under the will, which was in excess of the amount to which she was entitled under the law.15 A residuary legatee who receives, although under protest, the amount due him under the will cannot, upon a mere offer to bring the amount so received into court, contest the validity of the will, where, upon the faith of his acceptance, certain special legacies provided for have been distributed.16 It has, however, been held that the receipt of legacies by the next of kin does not preclude them, where the grant of probate has been in common form, from calling for probate of the will in solemn form, in order that they may be afforded an opportunity of contesting it.17 392. Widow or Surviving Husband.-There is considerable lack of uniformity among the decisions as to the right of the widow of a decedent to contest the validity of his will. This is, in a great measure, due to the diversity in the provisions of the statutes of different jurisdictions, securing to the widow of a decedent certain rights in his realty and personalty which cannot be divested by the will of the testator.18 According to one view the widow may contest the will of her deceased husband,19 at least when there are no children.20 Thus it has been held that where a widow is left a legacy in lieu of dower, her right to attack the will for any legal reason still exists, and an action to contest its probate is not to be construed as an election to take dower if the will is set aside, or to take the devise or bequest under the will if it is sustained. In other words, her rights are in abeyance until the determination of the will contest. But it may be stated generally that a contest of the will by the widow does not appear to be a proper proceeding, if, without such a contest, she could obtain the same substantial benefit simply by failing to elect to take under the will, or by Kan. 15, 58 Pac. 962, 78 A. S. R. 307; 14. Holt v. Rice, 54 N. H. 398, 20 Am. Rep. 138; Rader v. Stubblefield, 43 Wash. 334, 86 Pac. 560, 10 Ann. Cas. 20. Note: 130 A. S. R. 216. 17. Malone v. Hobbs, 1 Rob. (Va.) 346, 39 Am. Dec. 263. 18. Notes: L.R.A.1918A 462; 11 Ann. Cas. 1015. 19. Flynn v. McDermott, 183 N. Y. 62, 75 N. E. 931, 111 A. S. R. 687, 5 Ann. Cas. 81, 2 L.R.A. (N.S.) 959. 20. Freeman v. Freeman, 61 W. Va. 682, 57 S. E. 292, 11 Ann. Cas. 1013 15. Ratliff v. Baldwin, 29 Ind. 16, and note. 92 Am. Dec. 330. 1. Flynn v. McDermott, 183 N. Y. 16. Stone v. Cook, 179 Mo. 534, 78 62, 75 N. E. 931, 111 A. S. R. 687, 5 S. W. 801, 64 L.R.A. 287. Ann. Cas. 81, 2 L.R.A. (N.S.) 959. The renouncing its provisions and electing to take under the statute. right of a surviving husband to contest his wife's will has also been. recognized. 393. Personal Representatives of Persons Interested.-The weight of authority seems to incline to the view that the right to contest a will does not pass to the executors or administrators of one having that right, for the reason that a person to be interested must have that interest at the time of the commencement of an action to contest the will. So it has been held that the administrator of a contestant cannot become a party to a proceeding to set aside a will under a statute authorizing an administrator to prosecute all actions which may be maintained or are necessary in the course of his administration. Since the right to contest a will in chancery exists only by virtue of statute, the fact that the right may be given to certain persons but not to their heirs or devisees violates no constitutional right. There are, however, decisions to the effect that the right to contest a will is one which may survive the death of the party having this right, and pass to such party's heirs. The administrators of an estate of a decedent in the absence of express authority conferred by statute have no power to institute or maintain a contest of the decedent's will.10 394. Assignees and Creditors.-The right of action to contest a will is not assignable nor the subject of conveyance,11 and it has been held that the creditor of an heir is not a party interested in a will within the meaning of a statute which gives the right to contest a will to "any person interested therein." 12 In some jurisdictions, however, an execution creditor of a party in interest may contest the probate of a will,18 and the authorities appear to agree that a purchaser from 4. Selden V. Illinois Trust, etc., Bank, 239 Ill. 67, 87 N. E. 860, 130 A. S. R. 180. Notes: Ann. Cas. 1913E 128; Ann. Cas. 19183 537. 5. Storrs v. St. Luke's Hospital, 180 Ill. 368, 54 N. E. 185, 72 A. S. R. 211; Chilcote v. Hoffman, 97 Ohio St. 98, 119 N. E. 364, L.R.A.1918D 575 and note. 6. Braeuel v. Reuther, 270 Mo. 603, 193 S. W. 283, Ann. Cas. 1918B 533, L.R.A.1918A 444 and note. 7. Selden V. Illinois Trust, etc., Bank, 239 Ill. 67, 87 N. E. 860, 130 A. S. R. 180 and note. 8. Chilcote v. Hoffman, 97 Ohio St. 98, 119 N. E. 364, L.R.A.1918D 575. 9. In re Sieb, 70 Wash. 374, 126 Pac. 912, Ann. Cas. 1913E 125 and note. 10. Braeuel v. Reuther, 270 Mo. 603, 193 S. W. 283, Ann. Cas. 1918B 533, L.R.A.1918A 444 and note. 11. Selden v. Illinois Trust, etc., 641, 24 So. 996, 74 A. S. R. 63. 13. Watson v. Alderson, 146 Mo. 333, 48 S. W. 478, 69 A. S. R. 615; Bloor v. Platt, 78 Ohio St. 46, 84 N. E. 604, 14 Ann. Cas. 332 and note. Note: L.R.A.1918A 459. the heir after the testator's death, of land which he would inherit, in case of intestacy, has a sufficient interest to entitle him to oppose the subsequent probate of an alleged will purporting to give the property to one other than the heir.14 It seems to be well settled that a mere creditor of the testator cannot contest the will, since it is immaterial to him whether he receives payment from the executor or the administrator, and to permit him to maintain such a contest would involve unnecessary expense and delay in the settlement of the estate, and require the trial of issues foreign to those properly triable in probate proceedings. 15 395. State or Public Administrator.-The right of the state to contest a will which obstructs its right of escheat is generally recognized although there may be the possibility that heirs may appear in due season.16 But it has been ruled that the state has no interest which will entitle it to contest a will, where it merely shows that there is a probability that some heir may fail to appear and claim the property, so as to permit proceedings to declare an escheat, and that the heir may fail to appear within the statutory period thereafter to claim the property, so that the state's title may become absolute.1 The decisions on the question as to whether a public administrator is an interested person, entitled to oppose probate of an alleged will of the decedent, are not altogether in accord,18 but the better opinion seems to be that the public administrator has no right to contest a will to secure for himself the right to administer.19 396. Intervention.-Parties in interest may intervene in proceedings to probate 20 or contest a will. A proceeding to contest a will commenced within the time allowed by the statute of limitations. inures to the benefit of a party who intervenes after the statutory period, and the statute of limitations is not available as a defense to the intervening petition.1 397. Validity of Agreements Not to Contest.-By the great weight of authority, a bona fide agreement by one interested in the estate of a testator to refrain from contesting the will is valid. It is not void as against public policy since it lessens litigation; and the forbearance to sue being a detriment to the promisee is a sufficient consideration to support the promise. Where opposition to the probate of a will is 2. In re Garcelon, 104 Cal. 570, 38 Pac. 414, 43 A. S. R. 134, 32 L.R.A. 595; Wood v. Bullard, 151 Mass. 324, |