In re Estate of Martin

The proponent in this ease, the child, John B. Martin, holds the affirmative of this issue, and must produce the evidence to prove it. On this point, see Code Civ. Proc., secs. 1981, 1869, 607; Estate of McGinn (Instruction 18), 3 Cof. Pro. Dec. 26; Code Civ. Proc., sec. 2061, subd. 5; Redfield on Law and Practice of Surrogate Courts, 3d ed., 217, et seq.; 2 Am. & Eng. Ency. of Law, top of p. 650, and cases cited; Baldwin v. Parker, 99 Mass. 79 , 96 Am. Dec. 697 , 701, 705; Hardy v. Merrill, 56 N. H. 227, 22 Am. Rep. 441 ; Williams v. Robinson, 42 Vt. 658 , 1 Am. Rep. 359 , 361; Delafield v. Parish, 25 N. Y. 9 .

It is true that the court has accorded the contestants the right to open and close, but that was because the court held that the contestants are the plaintiffs, and in this state the plaintiffs always have the right to open and close: Benham v. Rowe, 2 Cal. 387 , at foot of p. 409, 56 Am. Dec. 342 ; Code Civ. Proc., sec. 607.

The right to open and close in this state does not necessarily follow the burden of proof. The right is with the plaintiff “unless the court for special reasons otherwise directs": Code Civ. Proc., sec. 607.

The proponent did not appeal to this…