
    Perry and Others v. Bland and Others.
    Bill under art. 3, c. 30, R. S. 1843, to contest tlie validity and prevent the probate of a writing offered to be proved as a will. An issue was made up in the form prescribed by s. 60 of said article, except that the words, “the execution of the same being admitted,” were added. Held, that the defendants still had the right to open and close the argument to the jury. Held, also, that the defendants, by allowing the plaintiffs, as they did, to introduce their evidence first before the jury, did not waive that right.
    APPEAL from the Union Probate Court.
    
      Monday, November 28.
    
   Roache, J.

This was a proceeding instituted under the provisions of art. 3, c. 30, R. S. 1843, by the appellants, to contest the validity and prevent the probate of an instrument offered to be proved as the last will and testament of James Snowden.

The appellants, having first filed a caveat, filed a bill alleging for objections against the admission of the writing offered to probate, that the decedent, at the time of its execution, was of unsound mind, and that it was procured to be made by the false and fraudulent representations of the defendant, Emily Bland. Answers were put in by the defendants denying the incompetency of the testator, and the improper influences alleged.

An issue was made up, in pursuance of the provisions of section 60 of the same chapter above cited. The jury to which it was submitted for trial, found that the writing produced was the last will and testament of James Snowden.

The evidence is not set out. A bill of exceptions was taken, during the progress of the trial, to a ruling of the Court, which embraces the only error complained of. It shows that at the trial the appellants proceeded, without objection on the part of the defendants, to introduce their evidence to sustain their objections to the probate of the will. They were followed by the introduction of testimony on the part of the defendants, sustaining the competency of the testator, and rebutting the charge of fraud in procuring its execution. After the evidence was closed on both sides, the Court, on motion of the defendants, permitted them to open and close the argument to the jury.

This ruling of the Court is the only error assigned.

The appellants insist that the rule presci’ibed by section 60 above cited, is changed in the present case by the form of the issue. The issue made up is in the precise form required in that section, except that there is added to it these words: “ the execution of the same being admitted.” They contend that inasmuch as the execution of the will was admitted, it left them to sustain the affirmative upon the issue as to incompetency and fraud, and that as the issue thus threw upon them the affirmative, they were entitled to open and close the argument, according to the rule in other cases.

This would be true if the statute did not prescribe a rule. Section 56, of the same chapter, provides that it may be objected, by allegations in writing, against the admission of a will to probate, either that the testator was idiotic or of unsound mind, or that the will was not duly executed, or that the same was executed under duress or restraint, or obtained by fraud, or that any other valid objection exists. Section 60 enacts that in such proceedings an issue shall be made up whether the writing produced be the last will and testament of the testator ; “and upon this issue, the defendants in such proceedings shall have the affirmative.”

J. Perry, for the appellants.

J. Yaryan, for the appellees.

The language of the statute is imperative, and embraces all cases arising under it where any one of the objections specified is alleged, and there is no exception made.

It is contended, however, that inasmuch as the appellants were permitted to introduce their evidence first before the jury, without objection, the defendants were precluded from claiming their right to open and close the argument. We do not think so. The waiver of their right to introduce their evidence, certainly was no waiver of the right the statute gives them of opening the argument. They might, if they chose, have introduced no evidence at all. This certainly would not have precluded them from commenting on the appellants’ evidence, and in the order prescribed by the statute.

Per Curiam.

The decree is affirmed with costs.  