by statutes, as to execution of will and testator's soundness of mind, whereupon, in case of contest, the burden shifts to contestant to prove matters set forth in objections filed."s

It is incumbent on one petitioning for the probate of a will of a decedent to make satisfactory proof of the will, and, if he fails to do so, the trial court must, though there is no opposition to the probate, refuse probate."

Where a will is unreasonable, the burden of explaining away the unreasonableness does not devolve on the proponent in a contest over its probate.1

The burden of proving that the decedent understood the will was not shifted to the proponent of the will in a will contest merely beCause it was shown that the decedent at the time of the execution of the will was unable to speak articulately, but only communicated to those around him by signs made by him."

In a proceeding to contest a will, where contestant's interest is put in issue by the pleadings, the burden is on him to show his interest.3

Where the principal beneficiary in a will was testatrix's attorney when the will was executed, occupying a fiduciary relation of the highest trust, the law presumes that undue influence was used, and the burden is upon the attorney to show the contrary.

Every presumption, not inconsistent with the record, will be indulged in favor of the validity of an order admitting a will to pro

bate.

Allen's Estate, 177 Cal. 668, 171 P. 686; In re Clark's Estate, 170 Cal. 418, 149 P. S28.

That testator was an aged person held not to overcome the presumption of validity of the will. In re Blackfeather's Estate, 54 Okl. 1, 153 P. 839; In re Cullberg's Estate, 169 Cal. 365, 146 P. 888; In re Latour's Estate, 73 P. 1070, 140 Cal. 414, rehearing denied 74 P. 441, 140 Cal. 414; In re Johnson's Estate, 93 P. 1015, 152 Cal. 778; In re Latour's Estate, 73 P. 1070, 140 Cal. 414, rehearing denied 74 P. 441, 140 Cal. 414.

os Dickey v. Dickey (Okl.) 168 P. 1018.

99 In re Hayden's Estate, 87 P. 275, 149 Cal. 680; In re Cullberg's Estate, 169 Cal. 365, 146 P. SSS.

1 In re Black's Estate, 64 P. 695, 132 Cal. 392.

In re Latour's Estate, 73 P. 1070, 140 Cal. 414, rehearing denied 74 P. 441, 140 Cal. 414.

3 In re Land's Estate, 137 P. 246, 166 Cal. 538.

4 Gidney v. Chapple, 110 P. 1099, 26 Okl. 737.

5 Where the order admitting a will to probate is attacked on the ground

§ 945. Trusts

When a transfer of real estate is made to a person, and the consideration thereof is paid by or for another, a trust is presumed in favor of the person by or for whom the payment was made; but this presumption may be overcome by evidence."

The burden of establishing a constructive or resulting trust is on him who seeks its enforcement."

§ 946. Bills and notes

"A written instrument is presumptive evidence of a consideration." 8

When such presumption is overcome, the obligation must be controlled by the common law governing joint obligations."

"Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value." 10 "Except where an indorsement bears date after the maturity of the instrument, every negotiation is deemed prima facie to have been effected before the instrument was overdue." 11

"Except where the contrary appears, every indorsement is presumed prima facie to have been made at the place where the instrument is dated." 12

"Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as a holder in due course. But the last-mentioned rule does

that the heirs were never personally served with notice of the probate, every presumption, not upset by the record itself, is to be indulged in support of the validity of the order. In re Twombley's Estate, 52 P. 815, 120 Cal. 350. Helvie v. Hoover, 69 P. 958, 11 Okl. 687; Rev. Laws 1910, § 6660.

Hayden v. Dannenberg, 143 P. 859, 42 Okl. 776, Ann. Cas. 1916D, 1191; Babcock v. Collison (Okl.) 175 P. 762.

8 Rev. Laws 1910, § 934.

Outcalt v. Collier, 58 P. 642, 8 Okl. 473, judgment, 52 P. 738, 6 Okl. 615, reversed.

10 Rev. Laws 1910, § 4074; Metropolitan Discount Co. v. Davis (Okl.) 170 P. 707, 7 A. L. R. 670.

11 Rev. Laws 1910, § 4095; Metropolitan Discount Co. v. Davis (Okl.). 170 P. 707.

12 Rev. Laws 1910, § 4096.

not apply in favor of a party who became bound on the instrument prior to the acquisition of such defective title." 18

§ 947. Marriage

Where a marriage has been celebrated in accordance with the form of the law, the law indulges a strong presumption in favor of its validity.14

With respect to marriages contracted according to the common law or conformably to Indian custom, the courts will exercise all presumptions in favor. of validity in the endeavor to sustain the marriage.15

Cohabitation and reputation will not constitute marriage under the Creek laws or customs but will merely raise a presumption of marriage, where the cohabitation is matrimonial and not meretricious.1 The law is astute to preserve sanctity of the marriage relation, the legitimacy of children, and the stability of descent and distribution, and therefore presumes innocence and virtue in the absence of proof to contrary; 17 and the fact that a man and woman have openly lived as husband and wife for a considerable time, and are reputed as such, may give rise to presumption of previous actual marriage.18

Where a second marriage is actually shown, a strong presumption exists in favor of its legality, which is not overcome by proof of prior marriage and wife's failure to obtain divorce; and the party

13 Rev. Laws 1910, § 4109.

14 Copeland v. Copeland (Okl.) 175 P. 764. 15 Crickett v. Hardin, 60 Okl. 57, 159 P. 275. 16 Fender v. Segro, 137 P. 103, 41 Okl. 318. 17 In re Sanders' Estate (Okl.) 168 P. 197.

One who asserts the invalidity of marriage consummated according to law, because one of the parties had been formerly married and the spouse of the former marriage is still living, has the burden of proving that it has not been dissolved by divorce. Haile v. Haile, 40 Okl. 101, 135 P. 1143.

18 Coleman v. James (Okl.) 169 P. 1064; Linsey v. Jefferson (Okl.) 172 P. 641; Lewis v. Lewis, 60 Okl. 60, 158 P. 368.

That a man and woman openly cohabited together as husband and wife for a considerable time, recognized each other as such by declarations, admissions, etc., and were generally reputed to be such, may give rise to presumption that they previously entered into an actual marriage, as presumption is in favor of marriage and against concubinage. Linsey v. Jefferson (Okl.) 172 P. 641,

attacking it has the burden of showing that neither party to first marriage had obtained divorce.19

§ 948. Payment

Payment is not presumed, and, where it is in issue, the burden of proof is on the party pleading same to prove it.20

§ 949. Libel and slander

Where an action is predicated on a publication which is actionable per se, it is not necessary to allege and prove special injury; 21 but, if it be shown that such publication was privileged, or the pub: lication and testimony rebuts the presumption of malice, the burden devolves on plaintiff to show express malice.22

19 Jones v. Jones, 63 Okl. 208, 164 P. 463, L. R. A. 1917E, 921; Chancey v. Whinnery, 47 Okl. 272, 147 P. 1036; Zimmerman v. Holmes, 59 Okl. 253, 159 P. 303; James v. Adams, 56 Okl. 450, 155 P. 1121; Coachman v. Sims, 129 P. 845, 36 Okl. 536; Thomas v. James (Okl.) 171 P. 855; Copeland v. Copeland (Okl.) 175 P. 764.

20 State v. Emery (Okl.) 174 P. 770, 6 A. L. R. 234; Edwards v. Johnston-Larimer Dry Goods Co., 59 Okl. 101, 158 P. 446; Standard Fashion Co. V. Joels, 60 Okl. 195, 159 P. 846.

Where defendant in attachment gave a bond to secure the discharge of the property conditioned that he would perform the judgment in an action on the bond, it being shown that a valid judgment was rendered against defendant in the attachment, it would be presumed to be unpaid, and the burden of showing payment was on defendant.. Winton v. Myers, 58 P. 634, 8 Okl. 421.

21 Smith v. Gillis, 51 Okl. 134, 151 P. 869.

22 On proof that an alleged slanderous publication was privileged, the burden devolves on plaintiff to show express malice. Hubbard v. Cowling, 129 P. 714, 36 Okl. 603.

Where plaintiff has established publication of defamatory matter, he is entitled to recover, unless the publication itself and the testimony rebut the presumption of malice; the burden of adducing rebutting testimony being on defendant. German-American Ins. Co. v. Huntley, 62 Okl. 39, 161 P. 815.

(845)

The burden of proof is on the party holding the affirmative.23 It is on the plaintiff to establish every fact necessary to make out his cause of action by a preponderance of the evidence, and on the de

23 Montgomery v. Road, 8 P. 253, 34 Kan. 122; Bates v. Lyman, 12 P. 33, 35 Kan. 634; Fifth Ave. Library Society v. Phillips, 136 P. 1076, 39 Okl. 799; Standard Marine Ins. Co., Limited, of Liverpool, v. Traders' Compress Co., 46 Okl. 356, 148 P. 1019.

Account. In an action on an account, wherein the answer puts in issue all the allegations of the petition, the burden of proof is on plaintiff throughout the trial. Piper v. Matkins, 8 Kan. App. 215, 55 P. 487.

Alienation of affections. In a wife's action against her husband's parents for alienation of affections, the burden is on plaintiff to show a direct interference, and that defendants were inspired by malice. Brison v. McKellop, 138 P. 154, 41 Okl. 374. In such case, much stronger proof of improper motive is required than where such an action is brought against a stranger. Brison v. McKellop, 138 P. 154, 41 Okl. 374.

Bankruptcy-Under Bankruptcy Act (as amended in 1903) § 60, subds. (a) and (b), being U. S. Comp. St. § 9644, in order to set aside an alleged voidable preference, the burden is on the trustee in bankruptcy to prove all the elements of a voidable preference as defined by such section. Kentucky Bank & Trust Co. v. Pritchett, 44 Okl. 87, 143 P. 338.

Where a petition has been filed under Bankruptcy Act, § 3, subd. (b), being U. S. Comp. St. § 9587, and the respondent takes issue with and denies the allegation of insolvency, it is its duty to appear on the hearing with its books and accounts and submit to an examination, and testify as to all matters tending to show solvency or insolvency, and on its failure to do so the burden