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power to take the probate of wills and grant administration on the estates of deceased persons.18 Even when a will has been proved in solemn form, it is within the jurisdiction of the court, for sufficient cause shown, to revoke the probate.14 But it has been held that the fact that a will is invalid and contrary to the laws of the state relating to charitable uses is not a ground for revocation of its probate.15 The time within which the original probate of a will may be revoked or set aside is not definitely settled. On a proper application made, it may perhaps be set aside at any time within twenty years after the original probate is granted and the will propounded for re-probate, and an issue of devisavit vel non made up and tried in the circuit court.16 The decrees of courts of probate are not ordinarily re-examinable at the instance of parties who have been privy to the proceedings. But it seems that one who presents a petition for the annulment of the probate of a will which is dismissed because the facts disclosed were entirely insufficient is not precluded from prosecuting subsequent proccedings in which other and sufficient facts are alleged.18 A purchaser of · lands in good faith from a devisee under a will admitted to probate gets good title, although the will is subsequently annulled as a forgery,19 or revoked because of the discovery of a later will.20

405. Jurisdiction.-As already seen certain courts are usually vested by statute with exclusive jurisdiction over all probate and testamentary matters, and it is the established doctrine that, in the absence of statutes authorizing it, courts of equity have not, under their general chancery powers, jurisdiction to entertain a bill to set aside a will or the probate thereof," for fraud, lack of testamentary

13. Bowen v. Johnson, 5 R. I. 112, Cal. 233, 81 Am. Dec. 118; Wheeler 73 Am. Dec. 49.

14. Waters v. Stickney, 12 Allen (Mass.) 1, 90 Am. Dec. 122 and note. 15. In re Lennon, 152 Cal. 327, 92 Pac. 870, 125 A. S. R. 58, 14 Ann. Cas. 1024.

16. Townsend v. Townsend, 4 Cold. (Tenn.) 70, 94 Am. Dec. 184.

v. Wheeler, 134 Ill. 522, 25 N. E. 588. 10 L.R.A. 613; Storrs v. St. Luke's Hospital, 180 Ill. 368, 54 N. E. 185, 72 A. S. R. 211; Rogers v. Rogers, 3 Wend. (N. Y.) 503, 20 Am. Dec. 716; Colton v. Ross, 2 Paige (N. Y.) 396, 22 Am. Dec. 648; Townsend v. Townsend, 4 Cold. (Tenn.) 70, 94 Am. Dec.

17. Redmond v. Collins, 15 N. C. 184; Domestic, etc., Missionary Soc. v. 430, 27 Am. Dec. 208. Eells, 68 Vt. 497, 35 Atl. 463, 54 A. S. R. 888.

18. Merrill Trust Co. v. Hartford, 104 Me. 566, 72 Atl. 745, 129 A. S. R. 415.

19. Steele v. Renn, 50 Tex. 467, 32 Am. Rep. 605.

20. Davis v. Gaines, 104 U. S. 386, 26 U. S. (L. ed.) 757.

1. See supra, par. 365.

2. Tarver v. Tarver, 9 Pet. 174, 9 U. S. (L. ed.) 91; Ellis v. Davis, 109 U. S. 485, 3 S. Ct. 327. 27 U. S. (L. ed.) 1006; State v. McGlynn, 20

3. Gaines v. Chew, 2 How. 619, 11 U. S. (L. ed.) 402; Broderick's Will, 21 Wall. 503, 22 U. S. (L. ed.) 599; State v. McGlynn, 20 Cal. 233, 81 Am. Dec. 118: Harris v. Tisereau, 52 Ga. 153, 21 Am. Rep. 242; Lyne v. Marcus, 1 Mo. 410, 13 Am. Dec. 509; Rogers v. Rogers, 3 Wend. (N. Y.) 503, 20 Am. Dec. 716; Sumner v. Staton, 151 N. C. 198, 65 S. E. 902, 18 Ann. Cas. 802 and note; State v. Lancaster,

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capacity, forgery, or any other cause. The reason for this denial of equity jurisdiction is that the powers of the court of probate are ample for the purpose of disposing of all such questions, and cannot recognize or act upon a will until it has been admitted to probate. Jurisdiction is, however, frequently conferred by statute on courts of chancery to contest wills, or to set them aside for fraud,10 but wherever jurisdiction to set aside a will or its probate has been conferred by statute it can be exercised only in the mode and under the limitations prescribed thereby.11 The extension by a state of equity jurisdiction to suits to set aside probated wills will permit the maintenance of such suits in federal courts sitting in such state, which acquire jurisdiction through diverse citizenship of the parties.12 But it has been held that diverse citizenship does not give jurisdiction to a federal circuit court of a bill which seeks a declaration of the nonexistence of a will, and the consequent nullity of its probate in a state court, where the proceeding to contest a will afforded by the laws of that state is but supplementary, or ancillary, to the original probate proceedings, and is not an independent controversy inter partes.13 It seems the joinder of causes of action for setting aside a deed and a will does not render a bill multifarious, where both grow out of the same subject matter.14 The jurisdiction of a court of equity to establish a trust ex maleficio in cases where testamentary provisions have been obtained by fraud or undue influence, is discussed at length elsewhere in this work.15

406. Pleadings.-The proceedings for the contest of a will are frequently provided for by statutes to the general effect that the contest

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den v. Illinois Trust, etc., Bank, 239 Ill. 67, 87 N. E. 860, 130 A. S. R. 180 and note; Ravenscroft v. Stull, 280 Ill. 406, 117 N. E. 602, Ann. Cas. 1918B 1130.

10. Williams v. Crabb, 117 Fed. 193, 54 C. C. A. 213, 59 L.R.A. 425; Vickery v. Hobbs. 21 Tex. 579, 73 Am. Dec. 238.

11. Storrs v. St. Luke's Hospital, 180 Ill. 368, 54 N. E. 185, 72 A. S. R. 211; Chicago Title, etc., Co. v. Brown, 183 Ill. 42, 55 N. E. 632, 47 L.R.A. 798; Kemmerer v. Kemmerer, 233 Ill. 327, 84 N. E. 256, 122 A. S. R. 169.

12. Williams v. Crabb, 117 Fed. 193, 54 C. C. A. 213, 59 L.R.A. 425.

13. Farrell v. O'Brien, 19 U. S. 89, 25 S. Ct. 727, 50 U. S. (L. ed.) 101.

14. Williams v. Crabb, 117 Fed. 193. 54 C. C. A. 213, 59 L.R.A. 425. 15. See TRUSTS, vol. 26, p. 1234 et

seq.

ants must file written grounds of opposition to the will offered,16 showing that the contestant has an interest in the estate which may be affected by the probate of the proposed will.17 A copy of this written opposition must be served on the petitioner or proponent,18 who may test its legal sufficiency by a demurrer 19 on any grounds for which a demurrer to a complaint in a civil action may be interposed.20 If the demurrer be sustained the contestants may amend their written opposition. If the demurrer be overruled an answer may be filed traversing or otherwise obviating or avoiding the allegations of the written opposition and the issues of fact raised by these two pleadings -the written grounds of opposition and the answer thereto-and none others, are to be tried.

407. Burden of Proof Generally.-It is quite generally agreed that the burden of proving the due execution and attestation of a will is upon the proponents, for whenever the death of any person is shown, until rebutted, the presumption is that he died intestate, and that his estate descends in pursuance of the laws of inheritance. Even after a will has been probated, it has been held that an action questioning its validity casts upon those who claim under it the burden of proving it. Although the contestants who have brought the action may introduce no evidence, and may even abandon the contest, the burden of proving the will still devolves upon those who would maintain it. The weight of authority, however, is to the effect that in a contest of a will which has theretofore been duly admitted to probate the burden of proof is on the contestant to establish his grounds of contest. The

16. State v. Superior Ct., 148 Cal. 55, 82 Pac. 672, 2 L.R.A. (N.S.) 643; Farleigh v. Kelley, 28 Mont. 421, 72 Pac. 756, 63 L.R.A. 319.

17. State v. Superior Ct., 148 Cal. 55, 82 Pac. 672, 2 L.R.A.(N.S.) 643. And see supra, par. 389.

18. Farleigh v. Kelley, 28 Mont. 421, 72 Pac. 756, 63 L.R.A. 319.

19. Brown v. Avery, 63 Fla. 355, 58 So. 34, Ann., Cas. 1914A 90.

20. Farleigh v. Kelley, 28 Mont. 421, 72 Pac. 756, 63 L.R.A. 319.

1. Farleigh v. Kelley, 28 Mont. 421, 72 Pac. 756, 63 L.R.A. 319; In re Sullivan, 40 Wash. 202, 82 Pac. 297, 111 A. S. R. 895.

2. Farleigh v. Kelley, 28 Mont. 421, 72 Pac. 756, 63 L.R.A. 319.

V.

S. E. 823, Ann. Cas. 1914C 898, 47
L.R.A. (N.S.) 722; Steinkuehler
Wempner, 169 Ind. 154, 81 N. E. 482,
15 L.R.A. (N.S.) 673; Sheehan V.
Kearney, 82 Miss. 688, 21 So. 41, 35
L.R.A. 102; Runyan v. Price, 15 Ohio
St. 1, 86 Am. Dec. 459; Reynolds v.
Reynolds, 1 Speers L. (S. C.) 253, 40
Am. Dec. 599; Tynan v. Paschal, 27
Tex. 286, 84 Am. Dec. 619 and note;
Williams v. Robinson, 42 Vt. 658, 1
Am. Rep. 359.

4. Sielbeck v. Grothman, 248 Ill. 435, 94 N. E. 67, 21 Ann. Cas. 229 and note.

5. Braeuel v. Reuther, 270 Mo. 603, 193 S. W. 283, Ann. Cas. 1918B 533, L.R.A.1918A 444.

6. In re Hayes, 55 Colo. 340, 135 3. Slaughter v. Heath, 127 Ga. 747, Pac. 449, Ann. Cas. 1914C 531 and 57 S. E. 69, 27 L.R.A. (N.S.) 1; Mob- note; McIntyre v. McIntyre, 120 Ga. ley v. Lyon, 134 Ga. 125, 67 S. E. 668, 67, 47 S. E. 501, 102 A. S. R. 71, 1 137 A. S. R. 213, 19 Ann. Cas. 1004; Ann. Cas. 606; Steinkuehler v. WempWells v. Thompson, 140 Ga. 119, 78 ner, 169 Ind. 154, 81 N. E. 482, 15

probate is held to be prima facie evidence of the due attestation, execution, and validity of the will, and the burden is upon the contestants to overthrow the will. So it has been held that the burden of explaining an erasure is on the contestant, since the proponent may in the first instance rely on the evidence afforded by the probate."

408. Burden of Proof as to Revocation of Will.-The burden of proof of showing that a will has been revoked rests as a rule on the person who asserts that such revocation has taken place,10 and one who asserts that a second will contained a clause of revocation of a prior will has the burden of establishing that fact.11 After the death of a testator whose will is found in a mutilated condition there is rarely any evidence accessible to show when or how the will came to be in the condition in which it was found. In this dilemma, the courts have adopted the rule that when a will was in the custody of the decedent and is found after his death bearing upon its face evidence of such acts of mutilation or of obliteration as are sufficient to revoke it, its condition will be presumed to have been the work of the testator, done with the intent to effect its revocation.12 Furthermore in the absence of all direct evidence the presumption is that all changes were made after the execution of the will.13 There is, however, authority for the view that where the interlineations are in the testator's own handwriting they may be presumed to have been made at or before the execution of the will.14 It is generally agreed that where a testator became insane after executing his will, one who claims, on the propounding of a copy, that the original will was revoked by destruction has the burden of proving that the will was destroyed while the testator was sane.15 The presumption that the testator mutilated his own will

L.R.A. (N.S.) 673; In re Murphy, 43 Mont. 353, 116 Pac. 1004, Ann. Cas. 1912C 380.

7. Scott v. Thrall, 77 Kan. 688, 95 Pac. 563, 127 A. S. R. 449, 17 L.R.A. (N.S.) 184.

8. Irwin v. Jacques, 71 Ohio St. 395, 73 N. E. 683, 69 L.R.A. 422.

9. Scott v. Thrall, 77 Kan. 688, 95 Pac. 563, 127 A. S. R. 449, 17 L.R.A. (N.S.) 184 and note.

10. In re Whitehorne, [1906] 2 Ch. (Eng.) 121, 5 Ann. Cas. 787; In re Shelton, 143 N. C. 218, 55 S. E. 705, 10 Ann. Cas. 531.

11. Cheever v. North, 106 Mich. 390, 61 N. W. 455, 58 A. S. R. 499, 37 L.R.A. 561.

12. Throckmorton v. Holt, 180 U. S. 552, 21 S. Ct. 474, 45 U. S. (L. ed.) 663; McIntyre v. McIntyre, 120 Ga. 67, 47 S. E. 501, 102 A. S. R. 71, 1

Ann. Cas. 606; Sellards v. Kirby, 82 Kan. 291, 108 Pac. 73, 136 A. S. R. 110, 20 Ann. Cas. 214, 28 L.R.A. (N.S.) 270; Müh's Succession, 35 La. Ann. 394, 48 Am. Rep. 242; Thomas v. Thomas, 76 Minn. 237, 79 N. W. 104, 77 A. S. R. 639; In re Hopkins, 172 N. Y. 360, 65 N. E. 173, 92 A. S. R. 746, 65 L.R.A. 95; Bennett v. Sherrod. 25 N. C. 303, 40 Am. Dec. 410. Note: 28 A. S. R. 351.

13. Hesterberg v. Clark, 166 Ill. 241, 46 N. E. 734, 57 A. S. R. 135; Müh's Succession, 35 La. Ann. 394, 48 Am. Rep. 242; In re Teed, 225 Pa. St.. 633, 74 Atl. 646, 133 A. S. R. 896.

Notes: 28 A. S. R. 351; 8 L.R.A. 383; Ann. Cas. 1915C 75.

14. Wikoff's Appeal, 15 Pa. St. 281, 53 Am. Dec. 597; Linnard's Appeal, 93 Pa. St. 313, 39 Am. Rep. 753. 15. Note: 4 Ann. Cas. 491.

does not apply where it is found in that condition under the control of a person to be benefited by its revocation.16

409. Competency of Witnesses; Expert and Opinion Evidence.A full discussion of the competency of witnesses in proceedings to probate or contest a will, and the admissibility, weight and sufficiency of expert and opinion evidence in such proceedings, will be found elsewhere in this work. 17

410. Order of Evidence.-In some jurisdictions the established practice is for the proponents to offer the will and probate in evidence and then rest, it thereupon becoming the duty of the contestants to offer their evidence, to be followed by the rest of the proponents' evidence.18 The contestants, it seems, are entitled to offer rebutting evidence only, after the proponents have closed their case, and it is not error for the court then to refuse to admit testimony which would have been properly admissible upon the examination in chief of the witness.19 In controlling the order of proof in a will contest, the court may require the contestant first to establish his interest, and may dismiss the proceedings if he fails to do so.20

411. Weight of Evidence.-When want of testamentary capacity is charged all the surrounding facts may be considered as bearing upon the issues raised. In the trial of a will contest where the burden of proof rests on the contestant, this requires proof of the necessary facts by a preponderance of the evidence. Thus in a proceeding to contest the validity of a will on the ground of the insanity of the testator, the burden is upon the contestant to show the insanity affirmatively by a preponderance of the evidence. If, however, it is shown that the testator was at one time suffering from insanity permanent in nature and character the presumption is that it will continue, and the burden is on the defendant to satisfy the jury by a preponderance of testimony that the testator was, at the time of executing the will, of sound mind.

16. Bennett v. Sherrod, 25 N. C. 303, 40 Am. Dec. 410.

17. See EXPERT AND OPINION EVIDENCE, vol. 11, pp. 594, 600 et seq.; WITNESSES, post, par. 54, 98-101, 131, 141, 172.

92 Am. Dec. 666.

20. In re Edelman, 148 Cal. 233, 82 Pac. 962, 113 A. S. R. 231.

1. Dowie v. Sutton, 227 Ill. 183, 81 N. E. 395, 118 A. S. R. 266.

2. In re Murphy, 43 Mont. 353, 116 18. Steinkuehler v. Wempner, 169 Pac. 1004, Ann. Cas. 1912C 380. Ind. 154, 81 N. E. 482, 15 L.R.A. 3. In re Dolbeer, 149 Cal. 227, 86 (N.S.) 673; Runyan v. Price, 15 Ohio Pac. 695, 9 Ann. Cas. 795; Rigg v. St. 1. 86 Am. Dec. 459; Sears v. Sears, Wilton, 13 Ill. 15, 54 Am. Dec. 419; 77 Ohio St. 104, 82 N. E. 1067, 11 Ann. Cas. 1008, 17 L.R.A.(N.S.) 353; Wilkinson v. Service, 249 Ill. 146, 94 Floyd v. Floyd, 3 Strob. L. (S. C.) N. E. 50, Ann. Cas. 1912A 41; Austin 44, 49 Am. Dec. 626; Kerr v. Luns- v. Austin, 260 Ill. 299, 103 N. E. 268, ford, 31 W. Va. 659, 8 S. E. 493, 2 Ann. Cas. 1914D 336. L.R.A. 668. 4. Keely v. Moore, 196 U. S. 38, 25 19. Higgins v. Carlton, 28 Md. 115, S. Ct. 169, 49 U. S. (L. ed.) 376.

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