delivered the opinion of this court.
In support of the instruction given by the county court to the jury, as set forth in the bill of exceptions, it has been urged that the testamentary paper read by the defendants in evidence to the jury was inadmissible upon the pleadings and issues in the cause. Upon the admissibility of this paper as evidence, no question was raised in the court below', none can arise here under our act of Assembly of 1825, ch. 117; the evidence how objected to, went to the jury without objection. But had *48the objection been taken in the county court, it ought to have been overruled.
To this action upon the testamentary bond the defendants pleaded general performance 5 to which plea the plaintiff replies and sets out in words, letters and figures, what he alleges to be the last will and testament of the testator; and states that there remained in the hands of the executors, after all disbursements and payment of debts, legacies, &c., a balance of $>7,035.//„, of which Grace Ann Robey, as legatee and distributee of the testator, was entitled to the sum of $3,520./¶\. To this replication the defendants, instead of rejoining specially as they ought to have done, put in a general rejoinder of general performance which, according to the interpretation given to such pleadings, in the loose and inartificial mode of pleading prevailing in the first judicial district of the State, means, if we give to it any operation, a general traverse of all the allegations contained in the replication. The rejoinder then puts in issue the facts, whether the paper recited was the only true and last will and testament of the deceased ; whether the balance of the testator’s estate was as stated in the replication, and whether Grace Ann Robey wras entitled to the portion thereof which she therein claims. On such issues, it surely cannot be denied that the testamentary paper read by the appellants, in evidence to the jury, was material and competent testimony, and necessary to the finding of a proper verdict, on the matter in controversy. But it has been insisted that this paper is inadmissible as evidence as a part of the last will and testament of the deceased, because bearing date in 1832, it is revoked and annulled by the revoking clause of the testator’s will, exhibited by the plaintiff, which bears date in 1838. This argument would be entitled to great, if not conclusive weight, if urged before the orphans court, by which this paper was admitted to probat as part of the last will and testament of the deceased. Whilst sitting here reviewing the judgments of the county court, wTe cannot exercise the powers of a court of probat, as to last wills and teslements of personal property. What the orphans court has-*49done upon this subject is conclusive upon this court, as far as concerns this question of express revocation. Omnia presumunturrite adafwisse, and for aught that appears to this court, it may have been satisfactorily proved to the orphans court that there may have been an error in date as to one of the testamentary papers admitted to probat, and that the one offered in the evidence by the defendants was of posterior execution; or that it was re-published by the testator after the sixteenth of May 1838.
Having sustained the paper offered in evidence by the defendants, as part of the last will and testament of W. W. Hannon, it is unnecessary for us to inquire how far this paper, if rejected as testamentary, would be operative as a deed of conveyance of one-half of the persona] estate of which he might die possessed.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.