The Court,
Comegys, C. J.,dissenting, sustained the objection and rejected the probate for that reason and as unwarranted by the statute. Notwithstanding the ruling, however, the counsel for the plaintiff proceeded to the jury and requesting the court to instruct them to that effect, which they did, they returned a verdict for the defendant, on which the counsel for the plaintiff gave notice that they would tender a bill of exceptions to the charge of the court.