*378Dissenting Opinion.
Cox, C. J.While the conclusion of the court, that in a proceeding to contest a will before probate, the burden is on the proponent of the will to prove that its execution was not procured by undue influence and that the maker of the will, at the time of its execution, possessed testamentary capacity, is supported by the eases cited in support of the proposition, I can not concur in the correctness of the conclusion. The case of Steinkuehler v. Wempner (1907), 169 Ind. 154, 81 N. E. 482, 15 L. R. A. (N. S.) 673, was a departure from what had been the law in this State before that time. Our statute (§3154 Burns 1914, §2596 R. S. 1881) gives the right to any one interested to contest the validity of a will and to resist the probate thereof and states the causes upon which the proceeding shall be based. Under it an action to resist the probate of a will on the ground of contest stated therein is merely an action to contest before probate and is entirely independent of the formal, ex parte probate. Curry v. Bratney (1867), 29 Ind. 195. In this case it was said in the opinion of the court written by Frazier, J.: “The statutory proceeding for trying the question of the validity of a will (2 G. & H. 558, et seq.) does not, it seems to us, involve any question as to whether the will has been admitted to probate. It may be instituted before probate or after. In either ease it raises simply the question of the validity of the will. In the first case the contest, if successful, prevents the probate, while in the last it revokes it. It attaches itself to and becomes a part of the proceedings of the probate, so that if the will has been previously admitted to probate, the court takes judicial notice of that fact; if it has not been admitted, the judgment rests without action until the will is offered for probate, if it has not been offered.”
Now the theory, that in a proceeding to contest a will before probate, the burden of proving the absence of undue *379influence, fraud or coercion and of proving testamentary capacity is based on §3145 Burns 1914, §2587 R. S. 1881, which is a part of the statute providing for ex parte probate and which provides: “If it shall appear, from the proof taken, that the will was duly executed, and that the testator at the time of executing the same was competent to devise his property and not under coercion, such testimony shall be written down,” etc. But this section of the statute simply voiced a rule of probate practice and does not require affirmative evidence of testamentary capacity or of the absence of fraud, undue influence or coercion entering into the execution of the will for the reason that the presumption is to the contrary as to all of these matters. In Herbert v. Berrier (1881), 81 Ind. 1, 4, it was said in an opinion written by Elliott, J.: “ The appellant contends that our statute requires that affirmative evidence of testamentary capacity must be adduced before the will can be admitted to probate. The basis of this contention is supplied by section 30 of the act concerning wills, which reads thus: ‘If it shall appear from the proof taken, that the will was duly executed, the testator at the time of executing the same competent to devise his property, and not under coercion, such testimony shall be written down, subscribed by the witnesses examined, and attested by the clerk * * * in a book kept for that purpose, and certified by him to be a complete record.’ This section is to be taken in connection with other provisions of the same act, and, when so taken, can not be construed to overturn settled rules of evidence, and to require a proponent to show, not only testamentary capacity, but also freedom from restraint. We think the natural presumption of competency must prevail, unless something countervailing it appears. In the statute defining murder, the provision expressly refers to persons of sound mind, and yet the courts have universally held that sanity is to be presumed until the contrary is made to appear. * * # We can not believe that the legislature ever intended that *380the proponent of a will should, in the first instance prove sanity and freedom from coercion.”
In Blough v. Parry (1896), 144 Ind. 463, 490, 491, 40 N. E. 70, 43 N. E. 560, it is held that the issue tendered, when a will is attacked for mental unsoundness, is testamentary incapacity and that the burden is on the one alleging it because sanity, testamentary capacity, is presumed. In that case it is admitted that outside of this State there is a conflict of decisions on this question, out, it is stated, the overwhelming weight of authority elsewhere is in harmony with our decisions. It is shown that the conflict had its origin in a rule of probate practice requiring the executor to offer some evidence of the testator’s mental capacity on propounding the will, and to examine the subscribing witnesses on that point, whether his capacity was or was not impeached. This rule of probate practice has never been given the authority of law by the approval of our Supreme Court but the contrary has been held in Herbert v. Berrier, supra. Such a rule can not overturn settled rules of evidence. In Teegarden v. Lewis (1896), 145 Ind. 98, 109, 40 N. E. 1047, 44 N. E. 9, it is said, “one who challenges the mental capacity of a testator or donor, has the burden of establishing the absence of the particular capacity in issue”. The court held in that case that “the capacity to execute a will is the perfect requisite for the execution of a gift inter vivos,” and, therefore, the proof of mental incapacity that would overthrow a will would invalidate a gift.
It has been considered that one claiming real estate as a gift by a deed had to sustain his title by proof of mental capacity of the grantor or that such deed was not procured by fraud or undue influence, except where a fiduciary relation existed, but, on the contrary, the burden has always been put upon the one attacking the deed on such grounds. It is difficult to understand why there should be a different rule applied to testamentary instruments. Section 3112 Burns 1914, §2556 R. S. 1881, withholds from persons of unsound *381mind the power to make a will and §3110 Burns 1914, §2554 R. S. 1881, has the same effect as to a conveyance or contract. In the opinion of Judge Gould in Delafield v. Parish (1862), 25 N. Y. 1, 72, which case is cited to sustain the holding of the court in Steinkuehler v. Wempner, supra, the following was the decision of the court because concurred in by a majority of the judges: “It is claimed by the contestants, that the proponents shall, on their part, make out affirmatively that the deceased was of sound mind; and that, in a case where the positive testimony of witnesses produced is balanced, the will must be declared invalid. The words of our statute * * # ‘if it shall appear upon the proof taken that such will was duly executed, that the testator, at the time of executing the same, was in all respects competent to devise real estate, and not under restraint,’ the will shall be ordered proved, etc., have been deemed to countenance this doctrine. A first reading might leave this impression; but further consideration would probably show that no rule of evidence is affected by this statute; since, that the testator was not under restraint is, by this act, as much required to ‘appear upon the proof taken’, as any other requisite to full competency and due execution. * * * If restraint were claimed as a ground for avoiding the will, that must be affirmatively proved by the contestants. * # * ‘In all eases where the act of a party is sought to be avoided, on the ground of his mental imbecility, the proof of the fact lies on him who alleges it.’ * * * ‘The burden of proof rests upon the party attempting to invalidate what, on its face, purports to be a legal act.’ ” Here was a statute identical with our §3145 Burns 1914, supra, indeed our section was taken from it, and the following proposition, found on page 97 of that ease, stated the judgment of the court on that proposition: “At common law, and under our statute, the legal presumption is that every man is compos mentis; and the burden of proof that he is non compos mentis rests on the party who alleges that an un*382natural condition of mind existed in the testator. He who sets up the fact that the testator was non compos mentis must prove it.” This was followed by Jones v. Jones (1892), 63 Hun 630, 17 N. Y. Supp. 905. When a statute has been adopted from another state its construction theretofore made is adopted with it. See, also, Morrell v. Morrell (1901), 157 Ind. 179, 186, 60 N. E. 1092.
So it would appear that the law has ever been in this State, until the case upon which the majority opinion is based, that the burden is on the one alleging mental incapacity, fraud, duress, undue influence, and, in short, anything attacking the integrity of a will to affirmatively prove his allegation. I think we should return to the- salutary and just rule of placing the burden on whoever alleges unsoundness of mind, fraud, coercion, duress and undue influence, for the presumption is in favor of soundness of mind, honesty and fair dealing.
Erwin, J., concurs in this opinion.
Note. — Reported in 105 N. E. 900. On tile question of the necessity that witnesses see signature of testator, see 38 L. R. A. (N. S.) 161. As to the burden of proving sanity with relation to wills, see 30 L. R. A. 733. As to testamentary capacity, see 8 Am. Rep. 181. See, also, under (1) 40 Cyc. 1338, 1120, 1117; (2) 3 Cyc. 169; (3) 40 Cyc. 1359; (4) 40 Cyc. 1272, 1020; (5) 3 Cyc. 386.