dissenting.
I am unable to concur with my brethren in the conclusion reached in this case.
It appears to me that the supplemental petition sets out a cause of action inconsistent with the cause of action set out in the petition to contest the will. If a recovery could be had upon the supplemental petition certainly no action could be further prosecuted by the parties who recovered this judgment to set aside or have the will contested. And if the plaintiffs who seek to have the will set aside should proceed to the trial of the cause and a verdict and judgment should be rendered, there could be no action prosecuted upon the supplemental petition.
I am, therefore, clearly of the opinion that it was a case in which the supplemental petition set up a cause of action inconsistent with the cause of action set out in the petition, and the plaintiffs could not prosecute both these actions. The trial court was therefore not only warranted, but required, to compel an election in this case. Plaintiffs having elected to stand upon the supplemental petition, the fact that they failed to establish their ease does not entitle them to now rescind that election and prosecute the action to contest the will.