#### Enno Staude et al. v. George F. Tscharner et al.

Opinion filed October 19, 1900.

Wills—right to file bill to contest will does not pass by descent or inheritance. The right to file a bill to set aside a will and its probate is not assignable, nor does it pass by descent or inheritance.

Writ of Error to the Circuit Court of Washington county; the Hon. M. W. Schaefer, Judge, presiding.

Upton M. Young, Alexander Young, and William H. Bennett, for plaintiffs in error.

Charles T. Moore, and James A. Watts, for defendants in error.

Mr. Justice Cartwright

delivered the opinion of the court:

The circuit court of Washington county sustained the demurrer of defendants in error to the bill in equity of plaintiffs in error. The complainants elected to stand by their bill, and there was a decree against them dismissing the bill and for costs.

The scope of the bill and its purpose are stated by counsel for plaintiffs in error, as follows: “This is a suit in equity, the object of which is to cancel the supposed last will and testament and two supposed codicils of Augustus Staude, deceased, and to declare said three instruments in writing, and the probate thereof, null and void *20and not the last will and testament of the said Augustus Staude, deceased, and that his estate be distributed among his heirs according to law. No other relief is sought by complainants’ suit in equity.”

The demurrer challenges the right of complainants to maintain the bill for the purposes stated, and the facts upon which the right is claimed, as alleged in the bill and admitted by the demurrer, are as follows: Augustus Staude died April 18,1896, after having executed the will and codicils in question. He left no widow nor child nor descendant of a child, and his only heirs were his two brothers, Robert Staude and Franz Staude. The will was probated in May, 1896. Robert Staude died January 14,1898, leaving complainants and one of the defendants his only heirs. Franz Staude, the other heir, died in September, 1898, and left heirs who were made defendants. The bill to set aside the will was filed February 26, 1900. The complainants claim an interest in the estate through Robert Staude, who was one of the heirs of Augustus Staude at the date of the probate of the will, but none of them were heirs of Augustus Staude or interested in his estate at the time of such probate.

Robert Staude and Franz Staude, the heirs-at-law of Augustus Staude, the testator, had a right given them by statute to contest the will, but neither of them contested it or attempted to do so. The right to file a bill to set aside the will and codicils and probate was not assignable, and did not pass by descent or inheritance to the complainants.' They had no right to file the bill. (Storrs v. St. Luke’s Hospital, 180 Ill. 368.) The court was right in sustaining the demurrer.

The decree of the circuit court is affirmed.

Decree affirmed.