We think the probate court erred in refusing to the contestants a jury trial on the validity of Mrs. Stedham’s will. True, it would seem the better practice that a party who desires that a jury shall pass on-the issue, should make his application at the time the contest is interposed; but we are not able to find, in the language of the Code, any warrant for construing his silence on such occasions into a waiver of this statutory right. — See Code, § 1634. We do not deny, that parties may expressly waive the right to a trial by jury; but we are unwilling to predicate such waiver on doubtful implication. It may be further remarked, that a new contestant. appeared in court on the day of trial; and certainly he had not waived this right.
[2-3.] We think also, that the second ground alleged why the will should not be admitted to probate, was sufficient. Mental incapacity, no matter what may be the cause of it, seems to be sufficient to invalidate a will. See 1 Jar. on Wills, (2 American edition,) 54-5. Eor this, however, if it stood alone, we would probably not reverse, as the contestants could have obtained under their first allegation, all -the benefit they could claim *527under the second. — Dunlap v. Robinson, 28 Ala. R. 100; Powell v. Powell, 30 Ala. 697.
The judgment of the probate court is reversed, and the cause remanded.