The counsel for the executor, after having called such of the attesting witnesses as were alive, and thus proved the formal execution of the will, was permitted by the judge to read the will to the jury, to which the appellants objected, on the ground that a subsequent will containing a revoking clause had been found by a jury to have been duly executed. The record of the case in which the validity of the subsequent will was determined was not then in evidence. It was subsequently put in evidence, and showed that the decree of the Probate Court admitting that will to probate had been reversed, because a jury had found that, although it was duly executed, and its execution was not procured by undue influence, the testatrix at the time of its execution was not of sound and disposing mind. At the time the objection was made, there was no fact in evidence that supported it, and it was properly overruled. Besides, the facts as they subsequently appeared in evidence were not evidence of a revocation of the will propounded at the trial. A subsequent will containing a clause revoking former wills is not evidence of revocation until it is admitted to probate. Stickney v. Hammond, 138 Mass. 116.
The deposition was rightly rejected. Without considering what may have been the power of the Probate Court, or of this court as a Supreme Court of Probate, in its discretion, to admit the deposition, no order had been made in framing issues to a jury that the deposition should be considered as evidence, and in the absence of any direction in regard to evidence the court in trying issues to a jury proceeds as a court of common law. At common law, the court cannot admit a deposition unless authorized by statute, and the provisions of the Pub. Sts. c. 169, § 36, do not cover the case on this point.
The questions put to Dr. Currier on cross-examination were either competent or immaterial, and no exception lies.
*168The exclusion of the evidence' of what Sylvia Holbrook, the deceased attesting witness, had said as to the testatrix’s capacity to make a will, was in accordance with the decision in Baxter v. Abbott, 7 Gray, 71, 82.
The request upon the effect to be given by the jury to the finding of another jury in the trial upon the validity as a will of the instrument of June 7, if the jury should find that there was no material change in the mental condition of Caira Robbins between the execution of the two instruments, was rightly refused. If the evidence had been the same in both cases, the jury in this case had still the right to find the issue before it according to its judgment on the evidence presented. To the ruling on this point as given there is no exception, except so far as the ruling is inconsistent with the request; and the objection taken at the argument to what is called the comment of the presiding justice upon the evidence of the condition of Caira Robbins on June 7, is not open to the appellants. If it were, the statement that “ there is not much evidence, specifically directed to that moment, as to what that condition was, before us,” is not charging the jury upon matters of fact, within the meaning of the Pub. Sts. e. 153, § 5. It does not appear that the presiding justice’s attention was called to this in any manner ; but if it is expressing an opinion, it is an opinion upon the quantity and not upon the weight of the evidence, or upon the ultimate fact which the evidence tended to prove. See Durant v. Burt, 98 Mass. 161. Exceptions overruled.