The Birmingham age-herald., 1903-02-25

a contestant of record upon the contest of the probate of the will in the Probate court, and for this reason it was bad In the case of Donegan vs. Wade. 70 Ala. 5Ol, where a will provided that the inter- est of any child who resists the probate'' of the will 'or petitions to break or set it aside should be forfeited and go to those who had not opposed it" we held that child who, with out making himself a party to the con test instituted by another devisee actively interferred In behalf of the contestant contributing to the expense of the liti- gation. was within the prohibition of the will and we should hold upon the aver ments of the plea here, that appellee was concluded by the decree of the Probate court upon the contest therein. but for the words of the statute which define the nature of the contest which shall preclude party in interest from contesting in a court of equity. Section 429S of the code provides: Any person interested in any will, who has not contested the same under the provisions of this article, may, at any time within eighteen months after the admission of such will to probate in this state, contest the validity of the same by bill In chancery," etc. A will is contested under the provisions of the article referred to by a party in interest "by filing in the court where it is offered for probate allegations in writing that the will was not duly executed or of the unsoundness of mind of the testator or of any other valid objections thereto, and thereupon an issue must be made np nn- der the direction of the court between the person making the application as plaintiff and the person contestlng the validity of the will as defendant" Code section 42S7. It is manifest that no one can contest under the provisions of the article" in which section 429S Is found except by filing the allegations in writing required by section 42s7 No one else can assert any of the rights of contest conferred by the statute. It is a person in interest who files such allegations in writing who alone has the right to determine the issue under the direction of the court, to summon, ex- anime and cross-examine witnesses, and who is alone liable for costs in the event the contest fails All other persons wheth- CT interested in the estate or not who ob- tain voice in the conduct of the contest in the Probate court by rendering flnan- cal or other assistance to the contestant of record do so merely by and through him. They do not exercise a statutory right, but merely an imperfect right granted by the contestant. Section 429S does not recognize such assistanc as a contest, although it may be so in fact It only recognizes the contest which the article prescribes, and expressly grants the right to subsequently, contest by bill in equity to all interested in the estate who have not so contested. The language of the statute is plain and must be fol- lowed. The fact that 1t practically per mits parties to repeat a contest of the validity of will by one of them refrain ing from participating of record In the contest in the Probate court is matter for the legislature and not for the courts.
 The case of Knox vs Paul.. 95 Ala. 510. does not decide the question here raised by the plea. It was expressly stated in that case that the contention here considered was conceded merely for the purpose of argument.
 The decree of the chancellor holding the plea insufficient must be affirmed