1 Carris v. Ingails, 12 Wend. 70. The action of waste at common law could only be bronght by one having the immediate estate of inheritance, but the plaintiff need not set out his title particularly: Greenly v. Hall, 3 Har. (Del.) 9. See Boone Real Prop. 119.

2 Carris v. Ingalls, 12 Wend. 70; Robinson v. Kinne, 1 Thomp. & C. 60. But see Chipman v. Emeric, 3 Cal. 273; 5 Cal. 239.

3 Rodgers v. Rodgers, 11 Barb. 595.

4 Rodgers v. Rodgers, 11 Barb. 595. It is no defense to an action for waste against a tenant for life that he acted in good faith or under a claim of right, or that he was in possession claiming a fee: Robinson v. Kinne, 70 N. Y. 147. See Zimmerman v. Amaker, 10 S. C. 98. It is not waste for a life tenant to cut timber so as to fit the land for cultivation or pasture, provided this does not damage or diminish the value of the inheritance, and is conformable to the rules of good husbandry: Wilkinson v. Wilkinson, 59 Wis. 557.

212. Wills.-Jurisdiction of an action for the construction of a will is incidental to that over trusts, and exists only where the court is moved on behalf of an executor, trustee, or cestui que trust, and to insure a correct administration of the power conferred by a will. Where no trust is involved, and no advice or guidance to an executor or other trustee is required, parties claiming under or against a will cannot maintain an action for the mere purpose of obtaining the court's opinion as to its meaning or legal effect." In an action to obtain construction of a will, the complaint should state that the testator left property, and also whether real or personal, or both. And if, in any case, an action to obtain a judicial construction of a will of personalty can be maintained by one entitled as distributee, against an executor of such will, it must be alleged in the complaint and proved upon the trial that the executor has in his possession, when the action is brought, personal property held upon the trusts in controversy.1 Where, in an action for the construction of a will, the defendants, in their answer, ask that the will be construed as desired by them, this is not to be taken as a waiver of the objection that the action as brought could not be maintained. The complaint in an action for the construction of a will, alleged that the

misdescription of the lot devised to the plaintiff was apparent upon the face of the will, but did not refer to any clause of the will supporting such an averment, and it was held that the averment being of a mere conclusion of law, was not confessed by demurrer. In an action to contest the validity of a will, the complaint must allege the death of the testator, and must show the plaintiff to have an interest of some kind in the subject-matter involved in the contest. The will itself not being the foundation of such action, a copy thereof attached to the complaint cannot be used to supply any of the averments which the complaint ought to contain, but does not. The general allegation that the testator was of unsound mind includes every species of unsoundness of mind; and the allegation that the will was unduly executed, includes duress, fraud, and whatever else goes to show undue execution.10 A petition for the probate of a will alleged to have been fraudulently destroyed during the lifetime of the testator, must state the facts and circumstances constituting the fraud."1

1 Bailey v. Briggs, 6 Lans. 356; 56 N. Y. 407. And see Wager v. Wager, 89 N. Y. 161.

2 Collins v. Collins, 19 Ohio St. 468; Corry v. Fleming, 29 Ohio St. 147; Rothgeb v. Mauck, 35 Ohio St. 503; Sutherland". Ronald, 11 Hun, 238; Chipman v. Montgomery, 4 Hun, 739; 63 N. Y. 221.

3 Walrath v. Handy, 24 How. Pr. 353; Simmons v. Fairchild, 42 Barb. 404, 410.

4 Chipman v. Montgomery, 4 Hun, 739.

5 Marlett v. Marlett, 14 Hun, 313.

6 Sherwood v. Sherwood, 45 Wis. 357. In an action to construe a will, if it appears upon the face of the complaint that there is no reason for the intervention of the court, a demurrer to the complaint will be sustained: Topf v. Wiegers, 3 N. Y. Month. Law Bull. 103.

7 Schmidt v. Bomersbach, 64 Ind. 53; Neiderhaus ". Heldt, 27 Ind. 480. A petition in an action to set aside a will, which alleges the death of the deceased, his ownership of property. the heirship of the plaintiff, the forgery of the will, its probate, and the perjury by which such probate was secured, states a cause of action: Fowler v. Young, 19 Kan. 150. A complaint in such action, which shows no joint cause of action in the plaintiffs, is insufficient: Scott v. Farman, 89 Ind. 580; Harris v. Harris, 61 Ind. 117.

8 Schmidt v. Bomersbach, 64 Ind. 53. And see Wilkinson v. City of Peru, 61 Ind. 1; State v. Boyd, 63 Ind. 428. The original will, when not lost or destroyed, and not a copy used in the pleadings, should be produced to the jury in proceedings to contest its validity: Haynes v. Haynes, 33 Ohio St. 598.

9 Willett v. Porter, 42 Ind. 250. A testator's mental unsoundness is sufficiently averred by an allegation that at the time of signing the supposed will he was not of sound and disposing mind, but, on the contrary, he was at such time of unsound mind: Estate of Crozier, Sup. Ct. Cal. 3 West C. Rep. 377.

10 Willett v. Porter, 42 Ind. 250. But see Clarke's Estate, Myr. Prob. Cal. 259.

11 Estate of Kidder, Sup. Ct. Cal. 5 West C. Rep. 755. And see Goodwin v. Goodwin, 59 Cal. 562

para

213. Written instrument. Where several graphs of a pleading are founded upon the same written instrument, each professing to set out a copy thereof, one copy filed with the pleading is sufficient for all the paragraphs.1 And it has been held, that a cross-petition need not set out a copy of the written obligation on which it is based, when it appears that the obligation is attached to the original petition. But a demurrer was sustained to a petition, which showed upon its face that the contract declared on consisted of a written order, and a letter and the answer thereto in relation to such order, but failed, without giving any sufficient reason therefor, to set out a copy of one of the letters.3 An allegation in answer that the defendant denies that a true copy of the agreement sued on is set forth in the complaint is neither a general nor a specific denial, but an affirmative defense, and he should be required to furnish particulars of the difference between the copy of the agreement set forth in the complaint and the instrument as it should be given. Where a pleading is founded on a written instrument, the rule is imperative that the original or a copy must be filed with such pleading; and if this be not done, and a sufficient excuse for such omission be not shown in the pleading, it will be held bad on demurrer for the want of

sufficient facts. In an action for the reformation of a written instrument, so much of the instrument as is sought to be reformed must be set forth accurately, and also the particular reformation sought.' And a complaint to reform a written instrument which does not contain or exhibit the original or a copy of the instrument, is bad on demurrer in Indiana.8 But a deed or other instrument referred to in a pleading which, though it may be evidence upon the trial, is not the foundation of the action or defense, need not be made an exhibit. Thus, a complaint by a building association to foreclose a mortgage need not exhibit a copy of its constitution and by-laws, and if it does so, such exhibits will not be considered as part of the complaint.10 A complaint on a policy of insurance against loss by fire must allege an insurable interest in the property at the time it was insured, and at the time of the loss. The value of the property at the time of loss must also be alleged, but it is not necessary to aver its value when the insurance was taken.12 A complaint by a lessor to recover rent, upon the agreement to pay in a written lease executed by the lessor and a corporation, as lessee, shows no cause of action against the officers of the corporation.18 The signing alone by one party of a writing purporting to be an agreement, without delivery to or acceptance by the other party, is not an execution of the agreement,1 and in an action by the latter thereon, a complaint which fails to aver an acceptance or delivery is insufficient on demurrer. 15 A complaint in an action to enforce a written instruinent, not under seal and not negotiable, must allege a consideration.16 The plea of non est factum is only proper in actions on written instruments under seal, and cannot properly be interposed as a defense to an action of assumpsit on any simple contract in writing,

such as a promissory note or bill of exchange." A failure by the plaintiff to deny, by affidavit, the genuineness and due execution of an instrument in writing set forth in the answer as the foundation of the defense, does not preclude him from showing, on the trial, that it was procured by fraud or misrepresentation.18

1 Scotten v. Randolph, 96 Ind. 581; Maxwell v. Brooks, 54 Ind. 98. 2 Coe v. Lindley, 32 Iowa, 437. But see Campbell v. Routt, 42 Ind. 410; 102, ante.

3 Johnson v. Tostevin, 60 Iowa, 46.

4 Sherwood v. Gardner, 5 N. Y. Civ. Proc. R. 239.

5 Sinker v. Fletcher, 61 Ind. 276; Hight v. Taylor, 97 Ind. 392.

6 Anderson School Township v. Thompson, 92 Ind. 556; Dyer v. Murdoch, 38 Mo. 224. But compare Andrews v. Alcoon, 13 Kan. 351; Calvin v. State, 12 Ohio St. 60; Larimore v. Wells, 29 Ohio St. 13; 227, ante.

7 Schellens v. Equitable Life Ass. Soc. 18 N. Y. Week. Dig. 556. 8 Cottrell v. Etna Life Ins. Co. 97 Ind. 311; Branham v. Johnson, 62 Ind. 259.

9 Sedgwick v. Tucker, 90 Ind. 271.

10 Newman v. Ligonier Building etc. Assoc. 97 Ind. 295.

11 Aurora Fire Ins. Co. v. Johnson, 46 Ind. 315; Home Ins. Co. v. Duke, 75 Ind. 535. See 155, ante.

12 Phoenix Ins. Co. v. Benton, 87 Ind. 132; Aurora Fire Ins Co. v. Johnson, 46 Ind. 315. And see Etna Ins. Co. v. Kittles, 81 Ind. 96. The kind and character of the property insured, its location, and the term for which the insurance was affected, must be alleged: Johnson v. Home Ins. Co. Sup. Ct. Wy. 6 West C. Rep. 420.

13 Terstegge v. First German etc. Soc. 92 Ind. 82. 14 Prather v. Dulauf, 38 Ind. 155; Am. Rep. 357.

Cline v. Guthrie, 42 Ind. 227; 13

15 Elliott v. Champ, 91 Ind. 398. And see Petty v. Board etc. 70 Ind. 290. Compare Hanna v. Barker, 6 Colo. 303; 3 Colo. Law R. 309. 16 Felt v. Judd, 3 Utah, 414. And see 123, ante.

17 Luna v. Mohr, Sup. Ct. N. M. 1 West C. Rep. 673.

18 Cox v. North Western Stage Co. 1 Idaho, 376. Compare Bryan v. Maune, 28 Cal. 238; Corcoran v. Dall, 32 Cal. 82; Smith v. Milburn, 17 Iowa, 30. Where a written instrument set forth in the answer is not denied by the plaintiff's affidavit, and evidence in respect to that matter, and tending to show that the instrument is not genuine, or was not delivered, is introduced without objection or motion to strike out, and is met by counter-evidence, the defendant will not be permitted to claim that the genuineness and due execution of the instrument are admitted: Clark v. Childs, Sup. Ct. Cal. 4 Pacif. L. Rep. 1058.