(Hamilton County Common Pleas,

1900.)

#### SARAH KILPATRICK et al. v. JOHN E. HUMPHREYS, executor.

In an action to contest the validity of a will, there is only one issue upon which a j ury must pass, irrespective of the pleadings', namely, whether the writing produced is the last will or codicil of the testator or not. The simple allegation in the petition that it is not, tenders the issue, and all other averments are surplus-age, and no answer is required.

Spiegel, J.,

Plaintiffs file their petition to set aside the last will and testament and codicil of 'Isabella Brown, deceased, alleging that the same “was not ,and is not, her last will and codicil, for that at the time of the execution of the same she was not of sound mind and memory, was under undue restraint and influence, and was fraudulently induced to make and sign the same.”

Defendant files a motion that plaintiffs be required to make their petition more definite and certain, by stating under what undue restraint and influence, and of whom, the testatrix was at the time of the execution of her will, and also when, where and by whom the testatrix was fraudulently induced to make and sign her will, and what said fraudulent inducements were.

Section 5858, Revised Statutes, provides that any person interested in a will or codicil, duly probated, may contest its validity in a civil action in the court of common, pleas. Section 5861 provides that an issue shall be made up, either in the pleadings or by an order on the journal, whether the writing is the last will or codicil of the testator, or not, which shall be tried by a jury. Our supreme court has determined in Walker v. Walker, 14 O. S., 157, that it is error for the court to render final judgment on demurrer to answer; an issue must be made up and tried by a jury.

In- Dew v. Reid, 52 O. S.,525, the supreme court, viewing the different acts upon this subject, and the interpretation placed upon them by said court comes to the following conclusion :

> “It will be observed that the issue which section 5861 requires to be made up and tried, is identical with that prescribed by former statutes, and defined by precisely the same language, which, therefore, must receive the same construction, and be given the same operation and effect, as had been accorded to it by previous adjudications. And though actions of this nature are now denominated civil actions, yet, in so far as they are governed by special rules of pleading and procedure under the code, the latter are inapplicable, so that the issue which shall be made up and tried in such cases, having been specifically prescribed by statute, can not be varied or restricted by averments in the pleadings whether controverted or not. And while that issue may be made up either by the pleadings, or by an order entered on the journal of the court, it must, whatever the mode adopted, be the broad issue required by the statute, whether the instrument produced is the valid will of the alleged testator; and as the proof may be commensurate with the issue, any competent evidence tending to prove that, for any reason, it is not his valid will, is admissible, and should receive proper consideration by the jury.”

This decision is explicit. There is only one issue upon which a jury must pass, irrespective of the pleadings, namely, whether the writing produced is the last will or codicil of the *246plaintiff or not. The simple allegation in the petition that it is not, tenders the issue, and all other averments are surplusage, and no answer is required. No matter what allegations the pleader may embody in his petition, they can neither enlarge nor circumscribe the final inquiry — is it the last will or codicil of the testator? *Cessante ratione legis, cessal ipsa lex.*When the reason for a rule ceases, the rule itself ceases.

C. W. Baker, for plaintiff.

Maxwell & Ramsey, contra.

The motion must be overruled.