
    Thomas Buckminster & Al., Appellants, versus Abel Perry.
    Upon an appeal from a decree of the Probate Court approving a will, the will is to be proved in this Court, as if the question had originated here; and the appellee, having the affirmative, is to open and close.
    This was an appeal from a decree of the judge of probate for this county, proving, approving, and allowing, the last will and testament of Abel Perry, deceased.
    * The question being on the sanity of the testator, [ * 594 | and the Court having directed an issue to the jury, the counsel for the appellants inquired of the Court in what manner the question was to be brought before the Court and jury, as it appeared that two forms had been heretofore used. 
    
    
      The Chief Justice said the proper form was for the appellants to make their objection in the manner of a plea, to which the appellee was to reply. The will, he added, is to be provided ab initia on the trial, as if the question had originated here ; and as the appellee was to have the affirmative side of the issue, he would open and close.
    The appellants, on the trial, relied on the circumstance of the testator’s not having disposed of all his real estate by his will, and the testimony of two or three witnesses, who were of opinion that the testator was much broken, and very forgetful about the time the will was made; and they testified particularly to several slight instances of a want of recollection.
    But all the subscribing witnesses were very positive that, at the time of executing the will, the testator was of sound mind.
    
      
      Ward and Bigelow for the appellants.
    
      Dexter and Sullivan for the respondent.
    
      
       Vide Phelps & Al. vs. Hartwell Al., 1 Mass. Rep. 71, and Blaney vs. Sargeant Ibid. 335
    
   Parsons, C. J.,

in summing up the cause, informed the jury that it was the opinion of the whole Court that the evidence given by the appellants to invalidate the will deserved but little consideration ; that the question was confined to the sanity of the testator at the time of making the will, which seemed to be fully established by those whose duty it was to be satisfied of that fact before they subscribed the instrument.

The jury found that the testator, at the time when, &c., was of sound mind; and the will was accordingly proved, approved, and allowed.  