Estate of Collins

A paper was offered for probate as the will of deceased. A nephew files objections and contests the probate, on the grounds that deceased did not sign the paper; that the signature is a forgery; that deceased was not of sound and disposing mind.

A jury was impaneled and sworn to try the issues. Without calling any witnesses or offering any proof, contestant claimed that the proponent must, in the first instance, prove the will, before the contestant could be called upon to offer proof. Proponent claimed that the contestant must first make out his case before the proponent could be called upon to reply to it.

Under the last clause of Sec. 1312, C. 0. P., the contestant is plaintiff and the proponent is defendant. Under Sec. 607, the trial must proceed in the order, viz: plaintiff must produce the evidence on his part, *74 and then the defendant may offer his evidence. It may be, as' suggested by counsel, that this presents the singular condition that the contestant must prove a negative. An answer is found in the statute; it is so written. The theory of this statute seems to be as follows: A paper is offered as a will; it is contested on any one or more of the statutory grounds;…