A provision in a will that on the death of a testatrix's husband she gave all her estate to the children of a named nephew, who should survive the husband, passed a fee simple title to the children of such nephew. Reeder v. Antrim, 64 App. 83, 110 N. E. 568, 112 N. E. 551.

Under this section, the after-acquired real estate, though not described in the devise, passes under a devise denoting an intention to dispose of all the testator's realty. Coon v. Coon, App., 112 N. E. 841.

This section modifies the common-law rule that a general devise not defining the devisee's interest conveys only a life estate. Brookover v. Branyan, 185 Ind. 1, 112 N. E. 769.

Under this section, a provision in a will giving to one certain lands, would if standing alone be sufficient to create a fee if a contrary expression is not otherwise expressed. Conover v. Cade, 184 Ind. 604, 112 N. E. 7.

A devise to testator's wife to remain her absolute property unless she remarries then the property to go to the children, is not a condition in restraint of marriage within this section, but the words used amount only to a limitation of the estate devised. Thompson v. Patten, App. 123 N. E. 705.

After-acquired property does not pass under this section to remaindermen where testator is intestate as to one-third of his property. Wolf v. Wolf,

127 N. E. 152.

App.

This section furnished a rule of construction and the intention of a testator to devise his entire interest in lands must prevail notwithstanding the common-law rule. Wolf v. Wolf, App. 127 N. E. 152.

3127.

When devise shall not lapse.

This section changes the common law rule as to the lapsing of devises made to the descendants of the testator, but not as to collaterals. Aldred v. Sylvester, 184. Ind. 542, 111 N. E. 914.

This section does not change the common-law rule as to the lapsing of devises upon the death of the devisee during the lifetime of the testator, in the case of devises to collaterals. Aldred v. Sylvester, 184 Ind. 542, 111 N. E. 914.

ARTICLE 2.-EXECUTION AND PROBATE.

Attesting witnesses to a will are sufficient to comply with the statute if they are competent at the time they sign the attestation, and their subsequent incompetency will not prevent the will being admitted to probate. Wiley v. Gordon, 181 Ind. 252, 104 N. E. 500.

Devisees under a will or codicil are not competent witnesses to attest the execution of the will or codicil. Wiley v. Gordon, 181 Ind. 252, 104 N. E. 500.

The testator need not sign the will in the presence of the attesting witnesses if he acknowledges his signature in their presence, and the witnesses need not know that the instrument which they attest is the will of the testator. Herring v. Watson, 182 Ind. 374, 105 N. E. 900.

See notes to sections 522, 3115, 3144, 3146.

A competent witness to a will under this section is one who can testify in subsequent proceedings in court to probate the instrument. Pfaffenberger v. Pfaffenberger, Ind., 127 N. E. 766.

3135. Who may have probate.

Persons who are named in wills as executors, are under no legal obligations to present such wills for probate. This may be done by any person who is interested in the estate. Doan v. Herod, 56 App. 663, 104 N. E. 385.

The testimony of one competent witness is sufficient to prove a will and admit it to probate, and where the witnesses to a will are dead, out of the state, or have become incompetent from any cause, the execution of the will may be proved by other witnesses who are acquainted with the handwriting of the testator and the subscribing witnesses. Wiley v. Gordon, 181 Ind. 252, 104 N. E. 500.

Where the execution of will is attested by two competent witnesses except that one witness is a beneficiary under the will, such beneficiary is a competent witness to prove the execution of the will, and the testament will be valid as to all persons except such beneficiary and the persons claiming under him. Wiley v. Gordon, 181 Ind. 252, 104 N. E. 500; Kaufman v. Murray, 182 Ind. 372, 105 N. E. 466.

3143. How proved in the absence of subscribing witnesses.

When the subscribing witnesses to a will are dead, out of the state or have become incompetent from any cause after attesting the execution of the will, the execution of the will may be proved by other witnesses who are acquainted with the handwriting of the testator and the subscribing witnesses. Wiley v. Gordon, 181 Ind. 252, 104 N. E. 500.

3144.

Effect of bequest or devise to subscribing witnesses.

If a bequest or devise is made by a will to a competent subscribing witness to the will, and the execution of the will can not be proved without his testimony, he is a competent witness on the admission of the will to probate to prove its execution, but the testament will be invalid as to such witness and those claiming under him. Wiley v. Gordon, 181 Ind. 252, 104 N. E. 500; Kaufman v. Murray, 182 Ind. 372, 105 N. E. 466.

If there are several beneficiaries named in a will, the will is not void because one of such beneficiaries is the wife of one of the two subscribing witnesses to the will, as he is a competent witness to prove the execution of the will. Kaufman v. Murray, 182 Ind. 372, 105 N. E. 466.

Under this section beneficiaries who did not attest a will may compel an interested attesting witness to prove the will whose testimony is competent as to them, but such action does not remove his incompetency under sections 522, 3115, 3132. Pfaffenberger v. Pfaffenberger, Ind. 127 N. E. 766.

3146. Certificate of probate.

In suit to quiet title exclusion of certified copy of will and probate proceedings in another state was proper under this section and sections 3147, 3149-3151, where will had not been filed or recorded in the county and was executed without wit- App. nesses as required by section 3132. Howard v. Merker, 127 N. E. 807.

3147. Will proved, as evidence.

See note to section 3146.

3149. Foreign wills.

See note to section 3146.

3150. Foreign wills.

See note to section 3146.

3151. Foreign wills, filing and recording.

In order that a foreign will and the probate thereof may be filed and admitted to record in this state, the persons interested therein should satisfy the court that the instrument ought to be allowed as the last will of the deceased and that there is property in this state on which the will may operate. Reed v. Bishop, 51 App. 187, 97 N. E. 1023.

If the property left in this state by a nonresident decedent is not sufficient to pay the claims of resident creditors of the deceased, the court may refuse to admit the will of the decedent executed and probated in another state to be filed and recorded in this state. Reed v. Bishop, 51 App. 187, 97 N. E. 1023.

3153. Objections to probate, continuance.

If before a will is admitted to probate, objections to the probate are filed, notice need not be given to the persons interested in the will to appear at the hearing to probate. Ahearn v. Burk, 179 Ind. 179, 99 N. E. 1004.

See note to section 3154.

Objections filed with the clerk of the court against the probate of a will do not constitute the complaint required by section 3154 to be filed in the circuit court contesting the validity of the will. Voyles v. Hinds, 186 Ind. 38, 114 N. E. 865.

[Acts 1921, p. 384. In force March 9, 1921.]

3154. Complaint to contest, limitation, parties, state.-1. Any person may contest the validity of any will or resist the probate thereof, at any time within one year 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 allegations 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: Provided, That any action now pending in the superior

court of Marion county, Indiana, brought pursuant to said act hereby amended, shall continue to final judgment and determination the same as if this act had not been passed, and that any action now pending in any of the circuit or probate courts of the State of Indiana, which, pursuant to the act hereby amended, should have been brought in the superior court of Marion county, Indiana, shall continue to final judgment and determination in the court where the same is now pending, and such court or courts are hereby given full jurisdiction, power and authority to hear and adjudicate the same, and in the same manner, and between the same parties as though the act hereby amended had never been enacted.

This section amends section 3154 Revision of 1914.

Section 2 of the above act provides that the act shall not apply where a will shall have been offered for probate prior to the taking effect of the act.

Section 3 of the above act provides that the act be in force and effect from and after its passage.

If a will is invalid because of the incapacity of the testator to make a will, and an heir of the testator who would inherit his property in the absence of a will dies, the heirs of such heir may contest the validity of the will. Crawfordsville Trust Co. v. Ramsey, 178 Ind. 258, 98 N. E. 177.

If a widow of a testator elects to accept the provisions made for her in a will, she can not contest the validity of the will, nor can her heirs after her death question the validity of the will in the absence of some showing that such widow was not bound by such election.' Hammond v. Toyne, 181 Ind. 584, 105 N. E. 42.

A complaint to set aside and revoke the proceedings admitting a will to probate because of fraud, which does not set forth facts which show that the testator was not capable of making a will, or that the will was unduly executed, is not a sufficient complaint to test the validity of the will. Fort v. White, 54 App. 210, 101 N. E. 27.

The executor of a will is a necessary party to proceedings to contest the validity of the will. Doan v. Herod, 56 App. 663, 104 N. E. 385.

All objections to the validity of a will in proceedings to contest the will, may be proved under the general allegation that the will was unduly executed, except that the testator was of unsound mind. Wiley v. Gordon, 181 Ind. 252, 104 N. E. 500.

Jury trials may be demanded in actions to contest the validity of wills. Crawfordsville Trust Co. v. Ramsey, 178 Ind. 258, 98 N. E. 177.

Wills are not to be held invalid in contest proceedings because one of the subscribing witnesses to the will, and whose testimony was necessary to prove the due execution of the will, was a beneficiary under the will when there are other persons who are devisees under the will. Wiley v. Gordon, 181 Ind. 252, 104 N. E. 500; Kaufman v. Murray, 182 Ind. 372, 105 N. E. 466.

Unsound mind as used in the statute relating to wills, means a person of a degree of unsoundness of mind which does not measure up to the standard of testamentary competency generally recognized by law. Wiley v. Gordon, 181 Ind. 252, 104 N. E. 500.

See note to section 3153.

On appeal from a will contest, the appellant need not join as a coparty the testatrix's sister, who is not a party in the contest nor required by this section

to be made a party. Prebster v. Henderson, 186 Ind. 21, 113 N. E. 241, 114 N. E. 691.

The fact that the state or a department thereof is named as a beneficiary in a will does not affect the right to contest the will given by this section. Hogston v. Bell, 185 Ind. 536, 112 N. E. 883.

The verification of objections to a will is not a jurisdictional question, and may be waived or the omission corrected. Prebster v. Henderson, 186 Ind. 21, 113 N. E. 241, 114 N. E. 691.

In filing objections to a will, it is not necessary to allege that they are filed for delay, since section 3153 requiring such an allegation refers only to objections filed to secure a continuance until the next term. Prebster v. Henderson, 186 Ind. 21, 113 N. E. 241, 114 N. E. 691.

The complaint required by this section in contesting the validity of a will must contain the formal requisites of the complaint prescribed by section 343. Voyles v. Hinds, 186 Ind. 38, 114 N. E. 865.

Where one has filed objections to the probate of a will, but fails to file a formal complaint in the circuit court contesting the validity of the will as provided by this section, and fails to give the notice required by section 3156, the court is without jurisdiction in the matter. Voyles v. Hinds, 186 Ind. 38, 114 N. E. 865.

[Acts 1917, p. 116. In force May 31, 1917.]

3154a. Contest, beneficiaries may not be prohibited.-1. That if in any will admitted to probate in any of the courts of this state, there is a provision or provisions providing that if any beneficiary thereunder shall take any proceeding to contest such will, or to prevent the admission thereof to probate, or provisions to that effect such beneficiary shall thereby forfeit any benefit which said will made for said beneficiary, such provision or provisions shall be void and of no force or effect.

3154b. Pending litigation not affected.-2. The provisions of this act shall in no wise affect litigation now pending in any of the courts of the state of Indiana.

3155. Bond of contestor.

Persons who file objections to the probate of a will and contest the validity of the will before it has been admitted to probate, are not required to file a bond to secure the payment of the costs. Ahearn v. Burk, 179 Ind. 179, 99

N. E. 1004.

Objections that are filed to the admission of a will to probate before the will is probated, need not name the parties that are beneficially interested in the will, but at or before the term of court at which the hearing of the application to probate the instrument will be had, a formal complaint must be filed stating the objections to the probate of the will, and all persons who are beneficiaries under the will, and who are not plaintiffs or contestants, including the person named in the will as executor, must be made defendants. Faylor v. Fehler, 181 Ind. 441, 104 N. E. 22.

Persons fraudulently prevented from making objections to the probate of a will may sue to have the probate set aside. Fort v. White, 54 App. 210, 101 N. E. 27.