Epitomized Opinion

This is_an action brought by Perrine to contest a will. ArNanswer was filed setting up that the will was valid. On trial day the plaintiff failed to appear, but his counsel appeared and moved for a continuance of the trial on the ground that his client, the plaintiff, was ill and' not able to appear in court. The application was not supported by affidávit or a physician’s certificate. The court refused to grant the motion and dismissed the case for want of prosecution. Thereupon the plaintiff prosecuted error to the Court of Appeals. In reversing the judgment of the lower court, the Court of Appeals held:

1. In a proceeding to contest a will, the trial court is without power to dismiss the action for want of prosecution on the part of the contestant, but must submit the question involved to the jury to ascertain whether or not the deceased died testate or intestate.