Ind. 252; Crabtree v. Atchison, 93 Ky. 338, 20 S. W. 260; Lucas v. Hunt, 91 Ky. 279, L. Ins. Co. 91 Ky. 208, 15 S. W. 242; Abat 15 S. W. 781; Wright v. Northwestern Mut. v. Sigura, 5 Mart. N. S. 73; Johnson v. Josephs, 75 Me. 544; Edelen v. Edelen, 6 burden of proof, and should open and close, Md. 288; Spaulding v. Hood, 8 Cush. 602; after the petitioner had made formal Hickman v. Layne, 47 Neb. 177, 66 N. W. proof of the execution of the alleged will, 298; Rea v. Bishop, 41 Neb. 202, 59 N. W. and that the contestants had the right to 555; Millerd v. Thorn, 56 N. Y. 402; Muropen and close the argument to the jury. ray v. New York L. Ins. Co. 85 N. Y. 236; In answer to the several special interroga Conselyca v. Swift, 103 N. Y. 604, 9 N. E. tories propounded, the jury found against 489; Hudson v. Wetherington, 79 N. C. 3; the petitioner, and declared that the instru- Stronach v. Bledsoe, 85 N. C. 473; Addison ment offered was not the will of John D. v. Duncan, 35 S. C. 165, 14 S. E. 303; BenAllport. From an order overruling peti-nett v. Sandifer, 15 S. C. 418; Sanders v. tioner's motion for a new trial, this appeal | Bridges, 67 Tex. 93, 2 S. W. 663; Bellingis taken. ham Bay & B. C. R. Co. v. Strand, 4 Wash.

Even if the burden of proof was on the proponent, and the court permitted the contestants to open and close, it would not be Evidence concerning the character of the error, because the appellant has not shown subscribing witnesses to the will and al-any injury by reason of the contestants' leged statements made by them to impeach it was improperly admitted.

state. If the issues to be tried were raised upon the allegations of the petition for probate, and the objections made thereto in the written opposition of contestants, it would then seem reasonable that the burden would be cast upon the petitioner to maintain by a fair preponderance of the evidence

Iowa, 423, 10 N. W. 814; Work Bros. v. Mc-|controversy as to the proper practice in this Coy, 87 Iowa, 217, 54 N. W. 140; Riehl v. Evansville Foundry Asso. 104 Ind. 70, 3 N. E. 633: State v. Banks, 40 La. Ann. 736, 5 So. 18; Percival v. Harres, 142 Pa. 369, 21 Atl. 876; Smith v. Nippert, 79 Wis. 135, 48 N. W. 253; Ochs v. People, 124 Ill. 399, 16 N. E. 662; Spies v. People, 122 Ill. 1, 12 N. E. 865, 17 N. E. 898; Gardner v. Preston, | the allegations of her petition, and this bur2 Day, 205, 2 Am. Dec. 91; Luckey v. Roberts, 25 Conn. 491; Holmes v. Goldsmith, 147 U. S. 150, 37 L. ed. 118, 13 Sup. Ct. Rep. 288; Farley v. Peebles, 50 Neb. 723, 70 N. W. 231; Card v. State, 109 Ind. 415, 9 N. E. 591; People v. Henssler, 48 Mich. 49, 11 N. W. 804; Re Westerfield, 96 Cal. 113, 30 Pac. 1104.

When the proof of the handwriting of a witness is introduced in evidence the contestants may then show the bad character of the witness and contradictory statements made by him.

Neely v. Neely, 17 Pa. 227; Harden v. Hays, 9 Pa. 151; M'Elwee v. Sutton, 2 Bail. L. 128; Gardenshire v. Parks, 2 Yerg. 23; Crouse v. Miller, 10 Serg. & R. 155; Otterson v. Hofford, 36 N. J. L. 129, 13 Am. Rep. 429; Reformed Dutch Church v. Ten Eyck, 25 N. J. L. 40; Losee v. Losee, 2 Hill, 609; Re Hesdra, 119 N. Y. 615, 23 N. E. 555; Abbott, Trial Ev. last ed. pp. 142, 143; Doe ex dem. Sutton v. Ridgway, 4 Barn. & Ald. 55; Provis v. Reed, 5 Bing. 435.

The same rule applies to dying declarations.

Carver v. United States, 164 U. S. 694698, 41 L. ed. 602–604, 17 Sup. Ct. Rep. 228; State v. Elliott, 45 Iowa, 486; People v. Lawrence, 21 Cal. 368; Wharton, Crim. Ev. 302; Bishop, Crim. Proc. 1209; Donnelly v. State, 26 N. J. L. 463; Nesbit v. State, 43 Ga. 238; State v. Thomason, 46 N. C. (1 Jones L.) 274; Rice, Crim. Ev. 340; Redd v. State, 99 Ga. 210, 25 S. E. 268; Bates v. State, 74 Ga. 105; Com. v. Cooper, 5 Allen, 495, 81 Am. Dec. 762; Lister v. State, 1 Tex. App. 739.

den would carry with it the right to open and close; but such is not the case. The proceedings for the contest of a will (before probate) are provided for in §§ 2340–2346 of the Code of Civil Procedure. Paraphrased, § 2340 would read: The contestants must file written grounds of opposition to the will offered, and serve a copy on the petitioner, who may demur thereto upon any grounds for which a demurrer to a complaint in a civil action may be interposed. If the demurrer be sustained, the contestants may amend their written opposition. If petitioner's demurrer be overruled, she may file her answer traversing or otherwise obviating or avoiding the allegations of the written opposition, and the issues of fact raised by these two pleadings (1) the written grounds of opposition, and (2) the petitioner's answer thereto and none others, must be tried, by a jury if demanded; and upon such trial the contestants are the plaintiffs, and the petitioner is the defendant. The issues to be tried, then, are raised by the allegations of the plaintiffs' (contestants') written grounds of opposition or complaint, and the defendant's (petitioner's) answer thereto. Thus the actual trial of the contest is not initiated until the proffered will is before the court (not the jury), upon the formal proof necessary to the probate of an uncontested will. The very fact that the petitioner's answer need be nothing more than a general denial of the allegations contained in the written grounds of opposition emphasizes the evident intention of the legislature that the contestants shall have the laboring oar throughout the trial. No other construction can be given to the lan

Holloway, J., delivered the opinion of guage of § 2340, above, and the plain meanthe court:

1. Had the contestants the right to open and close the case? It is contended by the petitioner that so long as she was required to make some proof in the first instance, even though it be formal in character, and only such as she would be required to make in case no contest had been inaugurated, she was entitled to open and close the case, and in deciding against this contention the district court committed prejudicial error. Whatever may be the rule in other jurisdic-¦ tions, where peculiar statutory provisions have entered into the determination of the question, there can scarcely be any serious

They

ing of the terms employed be preserved.
The contestants are the plaintiffs.
have the burden of proof imposed upon
them, and with that they have the right to
open and close. § 1080, Code Civ. Proc., as
amended by Act 5th Leg. Assem., approved
March 1, 1897 (Laws 5th Sess. p. 241). Sec-
tion 1312 of the California Code of Civil
Procedure is in terms identical with § 2340,
above, and received a construction in Re
Doyle, 73 Cal. 564, 15 Pac. 125, in which
Temple, J., concurring, said: "The same
procedure is made applicable to a contest
after the will has been admitted to probate
as before. In both, the contestant has the

laboring oar, as though he is attacking also tended to impeach each of such sub something which he must overcome by affirmative proof. Under such circumstances, I think the theory of the statute must be that the contest begins after the petitioner has made his prima facie case. In such case the burden would naturally be on the contestant, and all the provisions consistent and harmonious."

mandatory. They are: "(1) It [every will] must be subscribed at the end thereof by the testator himself, or some person in his presence and by his direction must subscribe his name thereto. (2) The subscription must be made in the presence of the attesting witnesses, or be acknowledged by the testator to them, to have been made by him or by his authority. (3) The testator must, at the time of subscribing or acknowledging the same, declare to the attesting witnesses that the instrument is his will; and (4) there must be two attesting witnesses, each of whom must sign his name as a witness, at the end of the will, at the testator's request." When a will is contested, the subscribing witnesses, if present in the county and of sound mind, must be produced and examined. If absent, the court. may receive other evidence, if any can be

scribing witnesses by showing that his repu tation for honesty and integrity is bad. It developed upon the trial that both subscribing witnesses were then absent from the state, and proof of the genuineness of their signatures to the purported will was made before the testimony above complained of was offered. Section 1723 of the Civil Code 2. Contestants were permitted to make provides the manner of executing and attestproof of the proceedings had in the adminis-ing all wills, other than holographic and tration of Allport's estate, of the attempt to nuncupative wills, and those provisions are probate the former will, of the transfer by Caroline V. Kelley to her husband, George H. Kelley, of a large portion of the prop erty belonging to the estate, and of the proceedings instituted in the district court to recover such property back into the estate. Of this complaint is now made. We are of the opinion that the evidence was properly admitted. Under § 2340, above, the issues formed upon the contest of a will may involve the competency of the testator, his freedom from duress, etc., the due execution of the will, or any other question substantially affecting the validity of the will. In this instance the pleadings put in issue the due execution and attestation of the will offered, and the question of the existence of a conspiracy formed by the petitioner and unknown parties to defraud the contestants out of their interests in the estate by successive attempts to have the property trans-had, of the facts mentioned in §1723, above, ferred to the petitioner, and, when all efforts had failed, by forging, or procuring to be forged, the alleged will offered for probate. The petitioner interposed a motion to strike out all allegations with reference to the conspiracy charged, but no error is predicated upon the court's denial of the motion, and no question is made as to the sufficiency of the pleading. The evidence offered tended to prove the allegations of the written opposition; tended to show the improbability that the will in controversy is genuine, and to disclose the motives of the petitioner in offering it. It cannot be said that the only possible issues which can arise upon the contest of a will are such as involve the competency of the decedent to make a will, or his freedom from duress, menace, fraud, or undue influence, or the due execution or attestation of the will itself, for, if this be so, subdivision 4 of § 2340, above, is meaningless. Any question, other than those just enumerated, which affects the validity of the will, may properly be the subject of controversy.

3. Upon the trial the contestants were permitted to introduce evidence tending to prove that the subscribing witnesses to the will offered had made statements contradictory of the facts contained in the attestation clause attached to the will, and which

but, as a rule, such facts, or many of them, can be proved only by the subscribing witnesses; and, for the purpose of making such proof, § 2343 of the Code of Civil Procedure provides for the identification of the handwriting of the absent subscribing witnesses. to the will, and, that done, those parties, though dead or out of the jurisdiction of the court, become, to all intents and purposes, active, living witnesses in court, giving testimony, as if under the sanctity of an oath, that at the time the instrument bears date the testator either signed it in their presence, or acknowledged to them that he had signed it or caused it to be signed, and that he then declared such instrument to be his will, and requested them to sign it as such witnesses, and that they did so in the testator's presence; and thus evidence of the due execution of the will in conformity to the requirements of § 1723, above, is made. If this was not so, it would be practically impossible to prove the due execution of any contested will. The proof of the genuineness of the signature of the dead or absent subscribing witnesses to the attestation clause, when one is appended, is evidence in the case that all the facts recited in it, and which are prerequisites to the due execution of the will, actually took place as therein set forth (2 Rice, Ev. 1207; Allaire v. Allaire,

testants called Rickerts, who testified that, while the estate was in course of administration, he had received a communication from the husband of the contestant Farleigh, making inquiry with reference to the proper. ty left by Allport; that George H. Kelley came to him, and asked that he (Kelley) be permitted to answer the letter, and, upon a refusal of that request, asked Rickerts to say to Farleigh that the property consisted principally of real estate in the town of Basin, and was not very valuable. The objection interposed to this testimony was that it was incompetent, immaterial, and irrelevant. Upon the issue of a conspiracy to deprive these contestants of participating in the Allport estate, this evidence, as well as the letter written by the petitioner to Farleigh, telling him that Allport's estate had been settled, and the property left to her, was relevant and properly admitted, the declarations of George H. Kelley, as of a co conspirator, or as the petitioner's agent; and those contained in the letter of the petitioner, as circumstances tending to prove such conspiracy.

37 N. J. L. at page 325; Scribner v. Crane, | to the estate. As further evidence of the 2 Paige, 147, 21 Am. Dec. 81), and supplies collusion and conspiracy charged, the conthe proof which in many, if not in most, instances it would otherwise be impossible to obtain. This view is further emphasized by the language of § 2343, above, which requires the subscribing witnesses, who are in the county where the cause is tried, and of sound mind, to be produced and examined; and, if such witnesses were present and sworn and examined by the petitioner, it would hardly be contended that they would not then be subject to the same rules of evidence, as mentioned in §§ 3379 and 3380 of the Code of Civil Procedure, as are applicable to other witnesses. The provisions defining the term "witnesses," and the circumstances under which contradictory statements may be shown, are modified by § 2343, above, to the extent that the exigency of the case permits the statement of the subscribing witnesses contained in the attestation clause, though not made under oath, to be received as primary evidence, or, in other words, permits the dead or absent witnesses to speak through the instrumentality of the statute itself, that its requirements have been fully met. The petitioner may not have the benefit of the testimony of two witnesses to the facts that at the time of the execution of the will the testator subscribed the same in their presence, and declared it to be his last will and testament, without having such witnesses subject to be discredited or impeached. If this was not so, and the appellant's contention prevailed, no contest could be successfully waged against a will offered under such circumstances, for it would be practically impossible to disprove by other evidence the facts, or at least some of the facts, set forth in the attestation clause, or necessary to the due execution of the will; and, if not disproved, then the facts would stand as actually proved by the testimony of two witnesses not only entitled to full credit, but who cannot be impeached. Code Civ. Proc. § 3120. "The subscribing witnesses are subject to same rules as to contradiction and impeachment as other witnesses." Abboti, Trial Ev. 2d ed. 142.

4. Complaint is also made that the court erred in admitting evidence of statements made by George H. Kelley to Henry G. Rickerts, then clerk of the district court. Before making this proof, the contestants had called the petitioner, Caroline V. Kelley, who testified that in all that was done by her husband, George H. Kelley, with reference to this estate, he was acting for her, and as her agent. Evidence had also been introduced of the transfer of a large portion of the property belonging to the estate by the petitioner to her husband, and of the efforts required to secure its reconveyance

5. Upon the trial the petitioner sought to prove by the witness Nichols that in May, 1899, the subscribing witness Geigerich had come to his office and handed to him the will in controversy, at the same time explaining the circumstances under which he had held possession of the document from the time of its alleged execution. The substance of Geigerich's statement to Nichols was that in October, 1895, Allport had executed the will, and gone with Geigerich to the office of the Butte Hardware Company to leave the instrument with one Kirby; that Kirby was not in, and Allport then handed it to Geigerich and asked him to deliver it to Kirby; that he (Geigerich) put the will away, and forgot about it until May, 1899, when he went to get a paper from a box in which he kept valuable papers, and discovered the will and brought it to Nichols. The offer to prove these declarations by the witness Nichols was excluded. As we have heretofore seen, Geigerich was, to all intents and purposes, a witness in court, testifying under oath that the facts recited in the attestation clause actually occurred as therein set forth, and the reason for the rule which now excludes these declarations made by him to Nichols is that his declarations not made under oath cannot strengthen the testimony which he has given under oath. The issue involved was the genuineness of the alleged will, ard to permit declarations of the absent subscribing wit ness in support of the validity of the will to be received in evidence for any purpose