Because the will was not introduced in evidence a reversal of the judgment is in order and on this basis I concur in the result reached in the opinion of Mr. Justice Brown.
It is my view, however, the proceedings to probate the will, including the contest thereof after transfer to the circuit court, were in rem (Caverno v. Webb, 239 Ala. 671, 196 So. 723 [5-6]) and that, though the verdict returned was somewhat irregular, it was sufficiently responsive to the issue tendered for the resting of a proper judgment. 68 C.J. p. 1124, § 10 and note 91.
FOSTER, LIVINGSTON, LAWSON and STAKELY, JJ., concur in these views.