On petition eor a rehearing.
Howk, J.An able and earnest petition for a rehearing of this cause has been presented by appellees’ counsel.' We have carefully examined and considered the several' points made in this petition, but we are by no means convinced thereby, that a rehearing of this case should be granted. On the contrary, our conclusion is, that we1 must adhere to our first decision. It is due, however, to! appellees’ learned attorneys, that the reasons for this conclusion should be briefly stated. The several reasons' *354assigned for a rehearing of this cause, in appellees’ petition, will therefore he considered and passed upon, in the same order in which counsel have presented them. The first reason assigned for such rehearing is thus stated in the petition:
“ 1. Because the hill of exceptions fails to show that the evidence of the witness, Jacob G-rube, if allowed to testify, would have been in any way material to the issues joined in the case.”
Where a party complains, in this court, of the exclusion of offered evidence by a lower court, we have often held, that such party must show, by a bill of exceptions properly in the record, what the evidence was which had been excluded. And where, on the trial of a cause, a party has propounded to a witness a question, to which an objection has been made and sustained, we have also held, that, if such party desired the opinion of this court on the correctness of such decision, he must state to the lower court, clearly and explicitly, the evidence he hopes to elicit by the answer to his question; and then, if such evidence is excluded, and is made a part of the record by a proper bill of exceptions, the alleged erroneous decision of the lower court in regard thereto would be clearly and fairly presented for our consideration. Graeter v. Williams, 55 Ind. 461, and Mitchell v. Chambers, 55 Ind. 289. The reasons for these decisions are clearly stated in the cases cited, and need not be repeated.
But, in our opinion, there is a wide and marked difference between the questions decided in those cases and the question presented by the record of this cause. There, the character, quality and materiality of certain offered evidence were the matters to be passed upon; while here, the sole question for our consideration was not in regard to what Jacob Grube would testify, nor whether his testimony would be material or immaterial, but whether or. not, by. reason of his relationship to one of the parties to the action, he should be permitted to testify at all. The *355objection of appellee’s counsel, which was sustained by the court below, was not an objection to the matter of Jacob Grube’s evidence, but it was an objection to his competency' as a witness under the law, by reason of the fact that his wife was a proper, necessary, and an actual party to the action. The matter, complained of by the appellants, in this court, was not the exclusion of any particular evidence, but the absolute refusal of the court below to allow a certain witness to testify at all, in the case. Where offered evidence is excluded, it must be made a part of the record before this court can pass upon the question, whether the court below has or has not erred in its exclusion. But where, as in this case, the matter complained of is the action of the court, in refusing to allow a witness to testify at all, the grounds of objection to the witness must be shown by a bill of exceptions, and this is all' that need be shown in order to present the matter for our consideration.
2. The second reason assigned by the appellees for a rehearing of this cause is thus set out in the petition:
“We again call the attention of the court to the fact., that, though the bill of exceptions purports to set out all the evidence, yet it shows upon its face that, as a fact, the ^evidence is not all set out.”
This point would have been well taken, if this court had, in its decision of this cause, passed upon the question of the sufficiency of the evidence to sustain the verdict. But that question was not presented to this court by appellants’ counsel, and, of course, was not considered. The bill of exceptions did show that the appellees objected to Jacob Grube’s testifying, “ as his wife was a party,” that the court below sustained the objection, and that to this decision the appellants at the time excepted. This ruling of the court below was therefore properly presented for our consideration by the bill of exceptions; and this was the only decision of the court below, embodied in the bill of exceptions, which this court has passed upon. To *356make this decision a proper part of the record, it was only necessary that the bill of exceptions should state clearly the grounds of the decision, as it did in this case. It was not necessary to the presentation of the question, that the bill should contain the whole or any part of the evidence in this case. What the bill did contain, in addition to the decision of the court in regard to Jacob Grube, in so far as that decision was concerned, was mere surplusage; and the fact, that “ the evidence is not all set out,” can have no bearing on the only point, decided by this court, presented in and by said bill of exceptions.
3. As a third and final reason for a rehearing of this cause, appellees’ counsel say:
“ We again suggest, that under sec. 39, p. 580, of vol. 2, Davis’ Statutes, the verification of the complaint is jurisdictional; and, as it affirmatively appears, that the com-plaint in this case was not verified, that question is still open in this court.”
Before considering this suggestion, we may properly remark, that the record fails to show that appellee made any objection whatever to the complaint, or to its want of verification, in the court below; and we must therefore' conclude, that appellee’s objection, if such it may be termed, as set forth in his suggestion, is made for the first time in this court. We are not inclined to regard objections thus made with much favor; and where it appears, as it does in this case, that the objecting party was of full age and sound mind, and had failed to make his objection in .the court below, our inclination is to hold that he has waived the right to object, in this court. But waiving' this point in this case, we will now consider appellees’ suggestion.
It may be conceded, that proceedings to contest the validity, and to resist or set aside the probate, of a will, are statutory proceedings, and that the statute providing for such proceedings ought to be conformed -to. The statute provides, that the contestant’s “allegation in. *357writing, verified by his affidavit,” shall be filed in the proper court. Certainly, the safer and better practice, under this statute, would be for the contestant or plaintiff’ to verify his complaint by his affidavit. But we can not hold, that the verification of such a complaint is necessary to give the court jurisdiction of the cause or proceeding. The statute prescribes two jurisdictional facts, the existence of either one, or both, of which would give the proper court of the proper county jurisdiction of such a proceeding. These facts are, the death of the testator in the county, or that some part of his estate is in the county, in which the proceeding is commenced. Both of these facts were alleged in appellants’ complaint, in this case j and in so far as the complaint was concerned, there could be no' doubt of the jurisdiction of the court below over this action or proceeding. Now, the appellee Hankins had the right, on his appearance in this action, to insist upon the proper verification of appellants’ complaint, before he should be required to answer said complaint. If this had been done, and the court below had then refused to require the appellants to verify their complaint, another and very-different question would have been presented thereby for our consideration, than the one now presented. But said appellee saw fit, as in our opinion he had the right to do, to waive the verification by the appellants of their complaint, and to join issue and go to trial thereon, without such verification thereof. Having voluntarily adopted this course in the court below, without objection or exception saved, it must be considered by this court, that said appellee has waived any objection he might have taken in the court below to appellants’ complaint, for the want of any verification thereof.
■ In support of their position on this point, appellees’ counsel have referred us to the case of Willett v. Porter, 42 Ind. 250. An examination, however, of the case cited will show very clearly, we think, that it has no bearing whatever on the point we are now considering. In the' *358case cited, the objection to the complaint was, not that it was not verified, but that it had not been verified by all of the contestants. And this objection had been made in the court below, and not for the first time, as in this case, in this court. We think, therefore, that the ease cited is not at all in conflict with our conclusion, in this case.
Appellees’ petition for a rehearing of this cause is overruled.