delivered the opinion of the court.
The petitioner alleges that she is one of the distributees of the estate of David Thompson, deceased, who died about the year 1840. That a paper purporting to be his last will and testament was admitted to probate, in the probate court of Amite county. That she believes said paper writing is not the last will of the deceased, but that he died intestate.
The object of the petition was to have an issue made up and sent to the circuit court, to try the fact, whether the paper admitted to probate is the last will and testament of the deceased, Upon the coming in of the answer, the court directed an issue to be made.up and sent to the circuit court for trial.- At the succeeding term of the probate court, the petition was dismissed on the ground that the petitioner had failed to tender *85an issue, and the question for decision is, whether it was the duty of the court, without any further action on the part of the petitioner, to make up the issue, or whether she was bound to tender the issue which she desired for the action of a jury in the circuit court.
The statute, Hutch. Code, p. 651, 652, sec. 80, provides, that if any person interested shall, within five years (after probate), appear and by bill contest the validity of the will, “ an issue shall be made up, whether the writing produced be the will of the testator or testatrix, or not,”— which shall be tried by a jury in the circuit court, &c. The petition presented the issue which the appellant desired, and it was the duty of the court, without any further action on her part, to make up the issue upon the facts as presented by the petition, if the first order was not already sufficient for that purpose.
Decree reversed, and cause remanded for further proceedings in the court below.