As respects the exceptions of the plaintiff in error to the refusal of the judge to charge the jury, upon-the effect of certain testimony, and as to the rules for weighing the testimony, we see no serious error. We think the judge was right in refusing to tell the jury that the existence of lunacy in the daughter afforded a violent presumption that the mother was also insane. It was a circumstance to be considered by the jury, and that is all. Perhaps, too, the judge was wrong in saying that such a proposition was contrary to common experience. That, too, was matter for the jury and not for the court. We find no fault either with his refusal to say that if insanity is once proven, it is presumed to continue until its non-existence is made out by proof equally strong. All that is true of this proposition is, that insanity once proved is presumed to continue until the contrary state is shown by satisfactory proof. It is not true that such proof must be as strong as was the proof of previous insanity. So, too, in the question of general insanity, the facts pro and eon are positive testimony. If one man sees conduct indicating insanity, and another sees at another time conduct indicating sanity, both witnesses give affirmative testimony. Perhaps, in questions of monomania, as the delusion only developes itself when the subject arises, the witness who sees the party when the subject of the monomania is before him, may be considered as giving positive testimony, whilst one *178who only testifies as to the state of the patient’s mind, when the subject on \yhich the delusion exists is not present to the mind, may be considered as giving only negative testimony. But the charge was asked on the subject of general insanity. We think, too, that, other things being equal, the jury ought to be governed by the number of the witnesses, and that the court ought to have given the charge as asked. But upon all these points, as to the weight of evidence, and as to the mode of considering it, we should be slow to grant a new trial, unless it was plain that the charge, or failure to charge, misled the jury. These rules are rather rules of philosophy than of law, and are only true in a general sense. It is difficult to find a case where witnesses stand exactly equal in means of knowing, in intelligence and credibility, and if a jury does believe a smaller number of witnesses against a larger, it is almost certain that there is a good reason for it. But we think there were errors of the court on the trial that makes it our duty to reverse his judgment refusing a new trial.
1. We think this was the probate of a will in solemn form as to Mrs. Evans. It seems to us absurd to say that after all this immense labor the result is only to have the will proven in common form, which the Code says, in terms, is conclusive upon nobody. The petition to the ordinary would have accorded better with the practice in this state had it formally called on the executors to prove the will in common form, though the case of Garther’s will, where the motion was exactly like the present, shows that this practice is not uniform. In England the form is very much like that adopted in the present case. It is spoken of as Galling in the probate: See Hayle vs. Hasted and Pearson, 6 English E. Reports, 313. And the Code, section 2424, contemplates “ setting aside” the probate in common form. We think that when the heir-at-law calls upon the executor to show cause why the probate in common form should not be set aside, and sets forth grounds attacking the integrity and validity of the will, that this is substantially a call for probate in solemn form, and especially is this true if the executor accepts the issue, and undertakes *179to prove the will. That all the heirs were not notified is not the fault of the caveatrix. That duty fell upon the executor, and the probate here stands on the footing of any other probate in solemn form when for any reason one at interest is not notified; this often happens. Sometimes an heir-at-law cannot be found; sometimes he is supposed to be dead when he is not. In all such cases the effect is that, however solemn the probate may be, it is still an open question as to all who have had no notice. It will be remembered that our Code, sections 2422, 2430, makes no special provision as to probate in solemn form when there has been a probate in common form. The case provided for is where the executor is the movant. The case of a motion to prove in solemn form after a probate in common form, is left to the proceeding as it was before, regulated by practice of probate courts in England so far as applicable to our circumstances. The course pursued here was very much in conformity to the English practice, as we have seen. fIt was competent for the executor to have notified all to appear, and had he applied for it, the court would have given as general a scope to the proceeding as he desired. When this will is probated by three witnesses as against Mrs. Evans, she is barred, and she need not care how often the case has to be gone over at the call of others. The prevention of that is the executor’s business, and however often he may have it sustained it is still an unproven will as regards heirs not notified. We are not prepared to say, either, that if this verdict stands the will is not set up in solemn form as to all these heirs. All were clearly notified of this proceeding, since all are witnesses before the court, and there is a good deal of authority to the effect that all persons who get notice are barred, whether made formal parties or not: Newell vs. Weeks, 1 Eng.Ec. Rep., 239. We are, therefore, of the opinion that the court should, have required the propounders to produce all the witnesses to the will, or show a good legal reason why they were not present.
2, 3. We think, too, the court erred in charging the jury that after the factum of the will was duly proven the burden *180of showing the other requisites ceased as to the propounders, and on the issue of sanity or insanity, undue influence, etc., the burden was on the caveators. We are aware of the fact that there are respectable authorities asserting this rule. It has the countenance of no less an author than Mr. Redfield, though he lays it down rather as a logical deduction from certain other rules than as the law. The truth is, the rule is unsettled. The general rule of law undoubtedly is that one is presumed' sane until the contrary is shown, and this may also be said of the rule that he who holds the affirmative of a proposition must prove his assertion. But when one comes into a court of justice to give the property of a deceased person a different direction from that given by the law, he takes upon himself to prove all the conditions on which his right depends. In Barry vs. Butlin, 1 Cartee’s, 637, Mr. Baron Park, in a case argued before himself, Lord Brougham, Mr. Bosanquet, justice,, and Erskine, chief justice, in bank, sitting as a committee of the Privy Council, says: “The strict meaning of the term ‘ onus probandi7 is, that if no evidence is given by the party on whom the burden is cast, the issue must be found against him. In all cases this onus is cast upon a party propounding a will. It is in general discharged by proof of capacity and the fact of execution.” In Harris vs. Ingledow, 3 P. Wms., it is said, “ The proof of a will is attended with more solemnity than a deed, and, therefore, in equity, in the case of a will, it is always necessary to prove the sanity of the testator. In Gerrish vs. Nasson, 22 Maine; 438, 441, the chief justice says, “the power' to make wills, and the manner of making them, depends upon certain statutory provisions, one of which is that the testator be of sound mind. The presumption that the person making a will was at the time of sound mind, is not the same as in the case of making other instruments, but the sanity must be proved.” In Connecticut this same rule is laid down: 8 Connecticut, 261. So in Tuff vs. Hasmer, 14 Michigan. Mr. Baron Park, in the case of Barry vs. Butlin, 1 Cartee’s, 638, above referred to, says, “the rules are two: 1st. That the *181onus probandi lies in every case upon the party propounding the will, and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator.” And this rule is elaborately established in Crowninshield vs. Crowninshield, 2 Gray, 524: See also the case of Delafield vs. Parish, 22 New York Court of Appeals, page 9. Indeed, whilst there seems to be some diversity as to what rule shall control the mind in deciding the question, even Mr. Redfield admits that the practice is almost universal to require the propounders to examine the witnesses as to the question of capacity and freedom. And this has, so far as we know, always been the rule in this state. In Potts vs. House, 6 Georgia, 334, which was a case most laboriously argued, and has been a leading case on wills in this state, one of the points made and decided was, upon whom, on an appeal, does the “ onus probandi” rest in an issue of devisavit vel non; and then, too, the great issue was the capacity of the testator, and on this point, Judge Lumpkin delivering the opinion, says: “They (the propounders) must not only prove that the instrument purporting to be a testamentary paper was formally executed, but that the testator was of sound and disposing mind.” The practice is to put the witnesses upon the stand to ask them as to the execution, and then to ask questions bringing forward the state of the testator’s capacity.
I am not, myself, prepared to say that the general doctrine of the law as to sanity is to be entirely disregarded. Undoubtedly sanity is the normal condition of man, and if, on an examination of the circumstances attending the execution nothing unusual appear; if the testator appear to be aware of what he is doing, and acts as sane men do, I am of the opinion that a prima facie case is made out, at least that a verdict for the will would be justified, if, when the facts are detailed, the act as done is done as sane men do things — as if a man ask a witness to attest his will, and the witness do so on its being signed by the testator — the very act of signing, intelligently, is a sane act. Unless, indeed, it appear that the testator was previously insane, when the other rule, to-wit: *182the presumption of the continuance of the same condition would doubtless require something more than a sane act at a particular period. Still the rule is undoubted, that it is a part of the propounder’s case to prove the sanity and freedom of the testator, and unless the jury be affirmatively satisfied that the testator was of sound and disposing mind, they should find against the will. We do not mean, however, to lay' down any rule as to the amount of evidence, as that is with the jury. All we intend to say is that the burden is on the propcmnders to satisfy the jury, as a fact, that the testator was sano and free.
4. It was, in our judgment, a serious error in the judge to charge the jury as he did, with regard to the effect to be given by them in their consideration of the case to the dispositions of the will, and to say to them that if the desire to provide for the poor child who gets a lift estate under the will was a natural and just one, it was no concern of theirs to enquire whether the mode she took was a wise and proper one.
The general rule in questions of the character made by this record, the reasonableness or unreasonableness of the dispositions of the will is a prime element for consideration : Clark vs. Fisher, 1 Paige, 171. And such is undoubtedly the rule of common sense and just reasoning. We judge men just this way in all the issues of lift — an insane act is proof of an insane mind; an unreasonable, foolish act, is the ordinary and usual proof of a disturbed mind. And this rule seems in a general way to be admitted by the charge. But the qualification put upon it, as it seems to us, takes away its whole effect. “Although the testatrix was a monomaniac as to her excluded children, even then, if her desire to provide for the idiot child be natural, the mode she takes to provide for that child, however foolish, unreasonable, insane it may be, is not for your consideration.” Why not? If the provision itself be a foolish and unnatural one; if it puts this very darling in strange hands and under unnatural influences, if the very provision be itself an unreasonable and unnatural act.
We" do not intend to pass upon the weight to be given to *183the dispositions of tins will; we only say that it was error to withdraw from the jury the consideration of the striking fact that the property of the testatrix, by the very terms of even this provision, for this sole blood kin, goes to strangers, to the exclusion of her children.
Judgment reversed.