
    Niederhaus v. Heldt and Another.
    Contest oe Wills.—Pauties.—A suit to contest the validity of a will can only be brought by a party in interest.
    Same..—The language, “any person may contest the validity of a will,” &c., used in section 39 of the statute on the subject of wills, must be limited by the provision of the code which requires every action to be prosecuted in the name of the real party in interest.
    APPEAL from the Gibson Common Pleas. •
   Ray, J.

The complaint alleges that in the month of September, 1865, Michael Katoling and Rosina Katoling, his mother, departed this life at said county; that on the '3d day of October, 1865, an instrument in writing, purporting to bo the joint will and testament of said decedents, was presented to the clerk of said county, and was by him admitted to probate, and a certificate thereof was'indorsed thereon, which, with a copy of said will, is filed with the complaint; that on the- day of October, 1865, the appellee Marchancl was appointed administrator, with the will annexed, of the estate of said Michael Katoling, and also administrator, with the will annexed, of said Rosina Katoling, and that he had qualified and entered upon said administration;, that the appellee Lewis Ileldt, is named as the sole and only legatee of said Michael Katoling and Rosina Katoling, in said, pretended will. The complaint further avers that said px-etended will is not the will of said Michael Katoling and Rosina Katoling, because at the time of its pretended execution, the said Michael and Rosina were both of uxisound mind, and each incapable of executing the same, and because said instrument was unduly executed by the said testatoi’s. The complaint also alleges that the said Michael Katoling and: Rosina Katoling died without leaving issue, or other known; heirs living, and that neither of the decedents have any heirs within the county, or the jurisdictioxx of the United' States,, and that the plaintiff is a citizen and a tax-payer of the county of Gibson, and State of Indiana. Piuyer that the probate of said pretended will and testament be sot aside and declared null and void.

The appellee demurred to the complaint for the reasons:. 1. That the complaint does not state facts sufficient to constitute a cause of action. 2. That the plaintiff" has no intei’est in the action, and is an improper party plaintiff". ThedcmuxTer was sustained, to which the appellant excepted, and judgment was rendered for defendants for costs.

By the act of May 31,1852, (2 G. & H., § 39, p. 559,) it, is provided that “ any person may contest the validity of auy will, or resist the probate thex-eof, at any time within three years after the same has been offered for probate.!’-' ■Section 41 provides, that “the final determination of sneh cause against the plaintiff", shall not. debar any other person from contesting such will within said three years.” It is insisted by the appellant, that this language is to be construed without regard to the provision of the code requiring every action to he prosecuted in the name of the real party in interest, except as otherwise provided in the next section. That section authorizes an executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, to sue without joining with him the person for whose benefit the action is prosecuted. But if these pi’ovisions of the code are to be regained as qualifying the section cited on the subject of the contest of wills, it is •urged that the appellant is still within the law, and that ho ■and all other persons are, for the purpose of contesting a will, “ expressly authorized by statute to sue.” The 47th •section of the act on the subject of wills provides, that ■“'infants, persons absent from the State, or of unsound •mind, -shall have two years after their disabilities are removed to contest the validity or due execution of such will.” By the construction contended for it would result, that every will executed within this State would be liable to bo contested until every infant 'in being at the date of the offered probate of the will should attain majority, every pex’son absent from the State should return, every person of unsound xhind should recover his reason, only to discover that the legislature of this State, in their inscrutable wisdom, had given him yet two years within which ho might commence proceedings to contest all wills, without having-a personal interest in any. This construction might ■commend -itself to those who are at present included within some of the disabilities named in the statute. Wo cannot, however, adopt it. By the act of February 1, 185.9, •supplemental to the former act on the subject of wills, 'it is provided, “ That in all cases of foreign wills and testaments heretofore admitted, or hereafter to bo admitted, ;to .probate, or -which have been or may be offered for record and filing in any county of this State, any person interested in the estate of the testator may contest such will or testament within the time, in the manner, and for any or all the causes prescribed by the laws of Indiana in cases of the contest of domestic wills.” It cannot be assumed that the legislature intended that “ any person ” may contest wills executed within the State, but that only “ persons interested in the estate of the testator” may contest foreign wills. Otherwise, a citizen of the State desiring to execute a will, would find an inducement to acquire a temporary residence elsewhere for the purpose of its execution. It is more reasonable to assume that the intention was to limit the contest of domestic wills by the provision of the code requiring the suit to be brought in the name of the person in interest.

A. G. Donald, for appellant.

J. D. Embree, for appellees.

The judgment is affirmed, with costs.  