This suit originated in the county court of McLennan county, on a petition filed by appellant to probate the last will and testament of Miss Fleetie Magee, and to which appellee filed his contest. The cause was appealed to the district court and there tried to a jury, and resulted in a judgment refusing ■ the probation of the will. Hence this appeal.
Appellee has filed a motion asking that the statement of facts filed herein, which is certified to by the court reporter and signed *253and agreed to by all parties, be not considered because same is not signed by tbe trial judge. Appellant bas filed a motion asking that be be permitted to withdraw tbe statement of facts and have', same signed by tbe trial judge, and after same is signed, be permitted tó refile same in tbis court, alleging that it was no fault of bis that tbe same was not signed by tbe trial judge. He attaches to tbe motion an affidavit of tbe trial judge' that if the same bad been presented to him be would have approved it, and that if be bas tbe power now to sign and approve same, be will do so if requested.
Where a statement of facts and transcript have not been filed in tbe appellate court in tbe time required by statute, tbe appellate court can, for good cause shown, permit tbe filing after the time allowed under tbe statute. Heflin v. Eastern Railway Co., 106 Tex. 28, 155 S. W. 188. Where a purported statement of facts is not signed by tbe trial judge, it does not, as a matter of law, constitute a statement of facts, and is not entitled to be filed in the appellate court. Texas Electric Ry. v. Gonzales (Tex. Civ. App.) 211 S. W. 347; Swift & Co. v. Jeffrey & Son (Tex. Civ. App.) 250 S. W. 791; St. L. S. W. Ry. Co. v. McCord (Tex. Civ. App.) 199 S. W. 526.
Before a statement of facts can be filed in tbe appellate court, same must be filed in tbe trial court in the time required by law. Articles 2073 and 2068, Revised Statutes; National Bank of Commerce v. Lone Star Milling Co. (Tex. Civ. App.) 152 S. W. 663; Billingsley v. Texas Midland R. R. Co. (Tex. Civ. App.) 208 S. W. 408. It appears from tbe record in tbis cause that tbe final judgment of tbe court was entered and motion for new trial overruled on April 5, 1924, and 90 days thereafter was given in which tbe statement of facts and bills of exception might be filed. Since it would be impossible to have tbe statement of facts now approved and filed in the trial court within tbe time allowed by law, it would not give appellant any relief to allow him to withdraw tbe statement of facts. 1-Iis motion is therefore overruled, and appellee’s motion to strike from the record and not consider tbe statement of facts is granted.
Tbe jury, in answer to special issues submitted, found that tbe will of Miss Magee, dated April 22, 1922, was executed by her, and that she was of sound mind at said time, but found that she executed same by reason of undue influence exercised over her by appellant, W. E. Magee. The jury further found that, when Miss Magee executed a codicil to her will in January, 1923, she was of sound mind, and that same was not executed as the result of any undue influence exercised over her. Tbe jury further found that Miss Magee destroyed tbe codicil to tbe will which she executed in January, 1923,' tbe date of destruction not being shown, but that same was destroyed because of undue influence exercised over her by appellant. Based on said findings, tbe trial court entered judgment refusing to probate tbe will.
Over the objection of appellant, appellee was permitted to prove by George T. Oox, the husband of Miss Magee’s sister, and Mrs. Ruby M. Wells, a sister of Miss Fleetie Ma-gee, deceased, that on several different occasions Miss Magee bad told each of them that she bad been trying to get appellant, Dr. W. E. Magee, to bring her tbe will and codicil so that she might destroy them and not have any will, and let her property go to the two brothers and sisters; and that on the occasions when they were discussing with Miss Magee the question of her will and her efforts to have appellant, Dr. Magee, bring it to her, she would stop talking about tbe will upon tbe appearance of Dr. Magee. Appellant objected to said testimony on tbe ground that such declarations were made long subsequent to tbe execution of the will and were inadmissible on any of the issues joined, and because tbe testimony was an attempt to prove undue influence by a declaration of tbe testatrix. Tbe court, in admitting tbe testimony,''instructed tbe jury that they could consider tbe testimony for tbe purpose of determining whether Miss ¡Magee was of sound mind at the time she made tbe will and the codicil, and also that they could consider same for the purpose of determining, whether there was any undue influence used in causing- Miss Magee to execute tbe will or codicil. Appellant objected to tbe court’s instructing tbe jury that they could consider tbe testimony to determine whether there bad been undue influence used. After tbe testimony bad closed, the trial court then instructed tbe jury that tbe testimony above complained of was withdrawn from their consideration, and they were instructed not to consider said testimony, or any part thereof, for any purpose. To what extent tbe trial court pan successfully withdraw from tbe jury testimony which bas been illegally admitted is difficult to determine. When jprors are accepted to try a cause, they are supposed to be free from all knowledge of tbe facts -which would likely influence them in arriving at a verdict.
It is tbe established bolding of our courts that statements made by tbe testator cannot be used to show any undue influence was brought to bear on him in tbe execution of the will. Scott v. Townsend, 106 Tex. 322, 166 S. W. 1138; Wetz v. Schneider (Tex. Civ. App.) 96 S. W. 59. Tbe court erred in admitting the testimony for tbe purpose of showing undue influence was used, and tbe error was intensified by tbe court instructing tbe jury that they could consider said statements for tbe purpose of determining whether there was any undue influence used by appellant to *254cause the testatrix to execute the will. The judgment in this case is based alone on the findings of the jury that the will was executed by reason of the undue influence exercised over the testatrix by the appellant. This testimony was very damaging, and the court having not only admitted same, but, at the time, over the objection of appellant, instructed the jury that they could consider same to determine whether appellant had used undue influence to get testatrix to execute the will, made it impossible to remove from the minds of the jury said testimony and charge. McCauley v. Long & Co., 61 Tex. 74; Philadelphia Underwriters’ Agency v. Cheeves (Tex. Civ. App.) 193 S. W. 1091; Dillingham v. Anthony, 73 Tex. 47, 11 S. W. 139, 3 L. R. A. 634, 15 Am. St. Rep. 753; Peticolas v. Thomas, 9 Tex. Civ. App. 442, 29 S. W. 166; Elliott v. Ferguson, 37 Tex. Civ. App. 40, 83 S. W. 56.
After the jury returned its verdict finding the testatrix executed a codicil to her will which she thereafter, by reason of undue influence being brought to bear upon her, destroyed, appellant asked leave to file a trial amendment, seeking to have the codicil probated in connection with the original will. This was refuged, and appellant assigns error. The transcript shows that there was no effort made to have the codicil probated as a part of the will in the county court. The county court has exclusive original jurisdiction to probate wills. Const. art. 5, § 16; article 3206, Revised Statutes. The district court has only appellate jurisdiction in probate matters. Article 1706, Revised Statutes. On an appeal from the probate court to the district court, only such issues as were presented in the probate court can be determined in the district court. Levy v. Moody (Tex. Civ. App.) 87 S. W. 205; Vance v. Upson, 64 Tex. 266; Minor v. Hall (Tex. Civ. App.) 225 S. W. 784. The question as to whether a codicil can be probated in the district court in connection with the will when same was not presented in the county court has not, so far as we have been able to ascertain, been directly determined by our courts. Under our Constitution and laws, the county court has been given exclusive original jurisdiction for the probate of wills.
A codicil may, in its effect, destroy or change a large portion of the will, and it must be executed under the same restrictions and solemnities as the original will, and its genuineness must be established by the same kind and character of proof. Until a will has been offered for probate in the county court, the district c-ourt cannot assume jurisdiction with reference to the probation thereof. Since there was no effort made to probate the codicil in the county court, the district court had no jurisdiction thereof, and could not determine its validity nor whether it should be probated, and did not therefore commit error in refusing to permit appellant to file said trial amendment.
For the errors heréin stated, the judgment of the trial court is reversed and the cause is remanded.