2760. (2590.) Application to court.-33. Upon the refusal of the clerk of the circuit court to admit a will to probate, application therefor may be made to said court.

2761. (2591.) Foreign wills.-34. Any written will that shall have been proven or allowed in any other of the United States or in any foreign country, according to the laws of such state or country, may be received and recorded in this state, in the manner and for the purpose mentioned in the next two following sections.

2762. (2592.) Foreign wills.-35. Such will shall be duly certified under the seal of the court or officer taking such proof; or a copy of such will and the probate thereof shall be duly certified, under the seal of his court or office, by the clerk, prothonotary or surrogate who has the custody or probate thereof, and such certificate shall be attested and certified to be authentic and by the proper officer, by the presiding or sole judge of the court by whose clerk or prothonotary such certificate shall have been made; or if such will was admitted to probate before any officer being his own clerk, his certificate of such will or record shall be attested and certified to be authentic, and by the proper officer, by the presiding or sole judge, chancellor or vice-chancellor of the court having supervision of the acts of such officer.

2763. (2593.) Foreign wills.-36. Such will or copy, and the probate thereof, may be produced by any person interested therein to the circuit court of the county in which there is any estate on which the will may operate; and if the said court shall be satisfied that the instrument ought to be allowed as the last will of the deceased, such court shall order the same to be filed and recorded by the clerk; and, thereupon, such will shall have the same effect as if it had been originally admitted to probate and recorded in this state.

A foreign will can not be used as evidence in this state until it has been properly filed and recorded in this state. Thieband v. Sebastian, 10 Ind. 454.

When a foreign will is presented in this state for filing and recording, the validity of the will, or probate thereof in another state, can not be contested. Harris v. Harris, 61 Ind. 117.

Foreign wills devising lands in this state must be executed in accordance with the laws of this state. Calloway v. Doe, 1 Blkf. 372; Lucas v. Tucker, 17 Ind. 41.

2764. (2594.) Wills executed here.-37. No will executed in this state, and proven or allowed in any other state or country, shall be admitted to probate within this state, unless executed according to the laws of this state.

[2 R. S. 1852, p. 308. In force May 6, 1853.]

2765. (2595.) Objections to probate Continuance.-38. If, prior to the admission of any will to probate before the clerk of the circuit court, objection thereunto, in writing, verified by his affidavit, alleging that the same is not made for vexation or delay, be filed by any person with such clerk, he shall continue the same until the succeeding term of the court, when, if the person contesting such will fail to resist the probate thereof, the judge of such court may admit such will to probate; but if such objection be made before such court, reasonable time shall be allowed to the party making the same to resist the probate of such will.

Only parties in interest can contest the validity of a will. Neiderhaus v. Heldt, 27 Ind. 480; Schmidt v. Bomersbach, 64 Ind. 53.

If the objections filed by the contestant does not show any interest on his part, the defect may be cured by the evidence when the contestee does not object before verdict. McElfresh v. Guard, 32 Ind. 408.

If a jury is called without objection, and interrogatories are submitted to the jury and answered, and the court disregards such answers and makes a finding and renders judgment thereon, there is no available error. Hite v. Sims, 94 Ind. 333.

Parties have a right to a trial by jury in proceedings to contest the validity of a will. Lamb v. Lamb, 105 Ind. 456; Deig v. Morehead, 110 Ind. 451.

2766. (2596.) Complaint to contest.-39. Any person may contest the validity of any will, or resist the probate thereof, at any time within three years after the same has been offered for probate, by filing in the circuit court of the county where the testator died, or where any part of his estate is, his allegation, in writing, verified by his affidavit, setting forth the unsoundness of mind of the testator, the undue execution of the will, that the same was executed under duress or was obtained by fraud, or any other valid objection to its validity or the probate thereof; and the executor and all other persons beneficially interested therein shall be made defendants thereto.

See section 311.

A suit to contest the validity of a will can only be prosecuted by a party in interest. Neiderhaus v. Heldt, 27 Ind. 480; Schmidt v. Bomersbach, 64 Ind. 53.

Parties contesting the validity of a will by resisting its probate can not again contest the same under this section. Duckworth v. Hibbs, 38 Ind. 78.

An action to contest a will must be brought within three years after the will is offered for probate. Potts v. Felton, 70 Ind. 166.

The amendment of the complaint by making new parties after the three years has expired will not bar the action when the original complaint was filed in time. Floyd v. Floyd, 90 Ind. 130.

The suit must be instituted in the county where the testator died, or where some portion of the estate affected by the will is situated, and the complaint should show the facts conferring jurisdiction. Sutherland v. Hankins, 56 Ind. 343; Thomas v. Wood,

61 Ind. 132.

The jurisdiction of the court of an action to contest a will will be presumed without the facts being set forth in the complaint unless the contrary appears. Lee v. Templeton, 73 Ind. 315; Kinnaman v. Kinnaman, 71 Ind. 417.

The executor and all persons named as beneficiaries in a will are necessary parties to an action to contest the will. Harris v. Harris, 61 Ind. 117.

An administrator of a decedent can not join with the heirs in contesting a will when they have no joint interest in the matter. Harris v. Harris, 61 Ind. 117.

One interested party may prosecute a suit to contest a will without other parties in interest being joined with him as plaintiff. Kinnaman v. Kinnaman, 71 Ind. 417. Purchasers of lands from a devisee under a probated will are proper parties to a suit to contest such will. Roberts v. Abbott, 127 Ind. 83.

If a question as to a defect of parties is not raised at the proper time the defect will be deemed waived. Thomas v. Wood, 61 Ind. 132.

A joint complaint must show a joint cause of action in all the plaintiffs. Scott v. Farman, 89 Ind. 580.

It is only necessary that one of the plaintiffs shall verify a complaint to contest a will. Willett v. Porter, 42 Ind. 250.

Failure to verify the complaint will not oust the court of jurisdiction. Sutherland v. Hankins, 56 Ind. 343.

A copy of the will, nor any writings therein referred to, need not be set out in a complaint to contest such will. Summers v. Copeland, 125 Ind. 466; Schmidt v. Bomersbach, 64 Ind. 53.

If a complaint charges in general terms that a will was unduly executed, such allegation will cover duress, fraud, and all other matters that show undue execution. Kenworthy v. Williams, 5 Ind. 375; Reed v. Watson, 27 Ind. 443; Willett v. Porter, 42 Ind. 250; Bowman v. Phillips, 47 Ind. 341; Lange v. Dammier, 119 Ind. 567.

A general allegation that the testator was of unsound mind includes every species of unsoundness of mind. Willett v. Porter, 42 Ind. 250; Lange v. Dammier, 119 Ind. 567. The influence exercised to procure the execution of a will which will render the will invalid, must be such as in some degree destroys the free agency of the testator, and induces him to do what is against his will. Rabb v. Graham, 43 Ind. 1; Bundy v. MeKnight, 48 Ind. 502; Todd v. Fenton, 66 Ind. 25.

A wife may lawfully exercise an influence over her husband which would be unlawful if exercised by a woman with whom he was living in adultery. Kessinger v. Kessinger, 37 Ind. 341.

The relations between a testator and his family may be shown as bearing upon the question of undue influence. Staser v. Hogan, 120 Ind. 207.

Declarations of a testator made when not engaged in executing the will, are not admissible to show undue influence. Hayes v. West, 37 Ind. 21.

If a testator has mental capacity sufficient to comprehend the extent and value of his estate, the number and names of the persons who are the natural objects of his bounty, and their deserts with reference to their treatment of him, and a memory sufficient to retain these facts long enough to direct the preparation of a will, he is mentally competent to execute a will. Runkle v. Gates, 11 Ind. 95; Bundy v. McKnight, 48 Ind. 502; Dyer v. Dyer, 87 Ind. 13; Durham v. Smith, 120 Ind. 463; Burkhart v. Gladish, 123 Ind. 337.

Mental derangement amounting to insanity in any form renders a person incompetent to make a will. Eggers v. Eggers, 57 Ind. 461; Lamb v. Lamb, 105 Ind. 456; Burkhart v. Gladish, 123 Ind. 337.

Belief in witchcraft is not, of itself, sufficient evidence of insanity to set aside a will. Addington v. Wilson, 5 Ind. 137.

An unequal distribution of an estate by a testator does not justify an inference that he was insane, but injustice and inequality may be considered in determining the mental capacity of the testator. Lamb v. Lamb, 105 Ind. 456; Conway v. Vizzard, 122 Ind. 266.

When a contest is on the ground of insanity of the testator, his mental condition both before and after the execution of the will may be shown. Dyer v. Dyer, 87 Ind. 13; Staser v. Hogan, 120 Ind. 207.

When it is shown that the testator was at one time of unsound mind, such a state will be presumed to continue until it is shown that sanity has been restored. Rush v. Megee, 36 Ind. 69; Kenworthy v. Williams, 5 Ind. 375.

If a testator was adjudged insane and placed under guardianship before executing a will, persons claiming under the will must show that he has been restored to sanity. Stevens v. Stevens, 127 Ind. 560.

Witnesses who are not experts may give an opinion as to the sanity of a testator when the facts on which the opinion is based are stated. Rush v. Megee, 36 Ind. 69; Kenworthy v. Williams, 5 Ind. 375; Leach v. Prebster, 39 Ind. 492; Ryman v. Crawford, 86 Ind. 262; Cline v. Lindsey, 110 Ind. 337; Burkhart v. Gladish, 123 Ind. 337. An expert witness can not express an opinion as to the sanity of the testator based upon the evidence, but a hypothetical question must be asked. Rush v. Megee, 36 Ind. 69.

The probate and proof of execution of the will are admissible in evidence. Summers v. Copeland, 125 Ind. 466.

Declarations of the testator not made while executing his will are only ad:aissible touching his mental capacity. Hayes v. West, 37 Ind. 21; Todd v. Fenton, 66 Ind. 25; Vance v. Vance, 74 Ind. 370; Runkle v. Gates, 11 Ind. 95.

When the mental capacity of the testator is in issue his declarations on the subject of making wills may be proven. Staser v. Hogan, 120 Ind. 207; Conway v. Vizzard, 122 Ind. 266.

Declarations of a testator prior to making a will, as to the disposition of his property, which correspond to the will, may be proven. Lamb v. Lamb, 105 Ind. 456.

The parties to the suit are competent witnesses. Call v. Byram, 39 Ind. 499; Coryell v. Stone, 62 Ind. 307; Lamb v. Lamb, 105 Ind. 456; Staser v. Hogan, 120 Ind. 207. After receiving a legacy under a will, such legatee can not contest such will without restoring the legacy. Lee v. Templeton, 73 Ind. 315.

If a devisee accepts devised lands he may contest the will when he was not aware of the cause for contest when accepting the lands. Lee v. Templeton, 73 Ind. 315.

The estoppel of one devisee or legatee to contest a will does not estop others from making such contest. Floyd v. Floyd, 90 Ind. 130.

A decree quieting title to devised lands may estop the parties from contesting the will. Faught v. Faught, 98 Ind. 470.

If the contest is successful, it revokes any probate had of the will, and prevents probate thereof when none has been made. Curry v. Bratney, 29 Ind. 195. When a will is adjudged to be invalid, it is void for all purposes. ster, 39 Ind. 492.

Leach v. Preb

A proceeding to contest a will is triable by jury. Lamb v. Lamb, 105 Ind. 456; Deig v. Morehead, 110 Ind. 451.

2767. (2597.) Bond of contestor.-48. Before any proceedings shall be had on an application to contest a will after probate thereof, the person making the same, or some other person in his behalf, shall file a bond, with sufficient sureties, in such amount as shall be approved by the clerk of such circuit court, conditioned for the due prosecution of such proceedings and for the payment of all costs thereon in case judgment be awarded against him.

Failure to file bond when the proceedings are instituted does not affect the jurisdiction of the court, but the proceedings may be stayed until a bond is filed. Coffman v. Reeves, 62 Ind. 334; Lange v. Dammier, 119 Ind. 567.

Any proceeding to have a will declared invalid is an application to contest the same, and a bond must be filed as required by this section. Burns v. Travis, 117 Ind. 44.

If the action is dismissed as to part of the plaintiffs a new bond need not be filed by the others. Kinnaman v. Kinnaman, 71 Ind. 417.

2768. (2598.) Notice-Hearing.-40. After the service of citation upon such defendants fourteen days before the hearing of such cause, or upon proof of the publication of notice made after the filing before said clerk of an affidavit of a disinterested person that the person so notified is not a resident of the state, or that his residence is unknown (such publication being made for three weeks successively in a weekly newspaper printed and published in the county, or, if none be published in such county, then in the county nearest thereto, thirty days before the hearing of the cause), the court may proceed to hear and determine such cause; and if any of the defendants thereto are minors, the court shall appoint guardians to take care of their interests in the controversy.

The parties are entitled to a trial by jury. Lamb v. Lamb, 105 Ind. 456; Deig v. Morehead, 110 Ind. 451.

2769. (2599.) Other contestors not barred.-41. The final determination of such cause against the plaintiff shall not debar any other person from contesting such will within said three years.

[1859, p. 246. In force February 1, 1859.]

2770. (2600.) Contest of foreign wills.-1. In all cases of foreign wills and testaments heretofore admitted or hereafter to be admitted to probate, or which have been or may be offered for record and filing in any county of this state, any person interested in the estate of the testator may contest such will or testament within the time, in the manner, and for any or all the causes prescribed by the laws of Indiana in cases of the contest of domestic wills: Provided, That nothing in this section shall be so construed as to allow the contest of any foreign will which may have been probated, or filed and recorded, in any county of this state, more than three years before the commencement of such contest.

This section does not apply where an authenticated copy of a foreign will is offered for filing and record in this state. Harris v. Harris, 61 Ind. 117.

[2 R. S. 1852, p. 308. In force May 6, 1853. ]

2771. (2601.) When infants, absentees, or insane may contest.— 47. Infants and persons absent from the state or of unsound mind. shall have two years after their disabilities are removed to contest the validity or due execution of such will.

Non-residents of the state have two years after the removal of their disabilities to contest a will. Cornell v. Goodrich, 21 Ind. 179.

2772. (2602.) Determination of court.-42. If such determination be against the validity of such will or the competency of the proof, the court shall refuse or revoke the probate thereof; but if it be in favor of the validity and due execution of such will, probate thereof shall be admitted or ratified.