dissenting. — -The opinion delivered in this cause is based in part upon error assigned to a portion of the charge of the court below. But there was no exception to that charge, nor counter-charge prayed, nor even in the motion for new trial was error in the-charge made one of the grounds. The first objection to it is made in the assignment of errors.
While I fully concur in the opinion on other grounds, and also that the charge was erroneous in changing the burden of proof of sanity of the testator from the party propounding the will for probate to those contesting it, yet I cannot concur that it was such an error apparent on the record as should be considered by this court, although assigned as such, when there was no exception, as before stated, in the lower court. It is manifestly not such an error as affects the foundation of the action, nor such as clearly and necessarily must have influenced the verdict.
Had it been, I am quite sure that the learned counsel representing appellant would have noticed the error and its necessary efféct at the trial; and most surely it would have occurred to them after verdict against their client and before motion for new trial. Their not having noticed it is, in this case particularly, persuasive to my mind- that it was not then-' deemed by them as a material error. Such should be the presumption in-all cases, and I cannot concur" in a practice which tends to' relax vigilance in the management of causes, and does not give to the court below an opportunity to correct any error into which it may have fallen, unless such error clearly affects the merits and foundation of the action. Beyond this exception I do not think this court should consider assignments of error not in some way called to the attention of the court below, and thereby made apparent on the record. ■ Iff all other respects I concur in the opinion of the court.