dissenting:
It is with regret that I am unable to concur in the decision of the majority in this case.
The legal evidence consists of a paper writing purporting to be a will, regular on its face, with the name of the testatrix attached in the usual place for the signature, containing a complete attestation clause, with the names of two subscribing witnesses subjoined thereto, and the order of the clerk stating that the will was fully proven before him *208by the oaths of the subscribing witnesses. The record further shows that the real attack on the validity of the will was based on the incompetency of the testatrix. This, in my opinion, is sufficient to affirm the order of probate.
Code, section 5261, which is copied in the opinion, means something. It is not a mere combination of words adopted by the legislature, with no purpose in view. The majority opinion here, as in Coalter v. Bryan, 1 Gratt. (42 Va.) 18, goes rather fully into the history of the legislation, but, as in that case, declines to give any force and effect to this particular enactment.
In Coalter v. Bryan, supra, the court decided the issues before it on other grounds, and the reference to the statute as then in force was dictum. In the present case, the decision turns upon the meaning given to this particular statute, and hence its construction is vital.
Both in England and in the early decisions of this court, a decided preference was shown for the heir over the devisee. Upon the latter is placed the burden of showing a better right to the land than the former. Modern decisions fully recognize the right of a testator to dispose of his property as he pleases, and it is only when the disposition of the estate, within certain limitations, is not the free will of a normal mind that the court will interfere. The preference alluded to is revealed in the opinion of Judge Baldwin in the case cited above.
In that case, one of the assignments of error was the failure of the chancellor, in making up the issue, to state whether or not Judge Leigh was a competent witness, and his failure to order the deposition of Judge Leigh, taken before the General Court, to be read to the jury. The appellate court held that Judge Leigh was a competent witness, but declined to rule on the admissibility of his deposition. Mr. Conway Robinson, in his argument on this point, said:
“It seemed to them (the legislature) that whether the ■witnesses who testified in the court of probate were dead *209or alive, no injury could result from letting the record of their testimony go to the jury that might try the issue, to have such weight as they might think it deserved. And hence the provision in the act in 1 R. C. 1819, p. 378, section 14 (same as section 12 in act of 1785). This provision does not in the least change the nature of the issue, or the relation of the parties to it. The legatees and devisees still affirm that the will is valid; the next of kin and heirs that it is not. The former are the plaintiffs, and the latter the defendants in the issue; and upon the former it is incumbent to introduce evidence to establish the validity of the will. As a part of that evidence, the certificate of the oaths of the witnesses at the time of the first probate is admissible; but this does not necessarily make out their case; or even a prima facie case; it has such weight and such only, as the jury shall think it deserves.”
This analysis of section 12 was neither repudiated nor affirmed by the court. Mr. Robinson was one of the two revisors of the Code of 1849, and in codifying this provision of the act of 1785 it was combined with a part of section 5 of chapter 92 of the Acts of 1838. The latter section authorized the taking of depositions of subscribing witnesses to a will, who, for certain causes, were unable to attend court, and provided that such depositions “in any subsequent contest about said will, upon an issue before a jury, shall be legal evidence, to have such weight as the jury may think proper.” The two provisions, so combined, became section 36, chapter 122 of the Code of 1849, as follows:
“The record of what is proved or deposed in court by witnesses on the motion to admit a will to record, and any depositions lawfully taken out of court, on such motion, of witnesses who cannot be produced at a trial afterwards before a jury, may on such trial be admitted as evidence to have such weight as the, jury shall think it deserves.”
There has been no change in this provision since that *210time. It was carried in the Code of 1887 as section 2546, and is now section 5261 of the Code of 1919.
The majority opinion discusses at some length the case of Brown v. Hall, 85 Va. 146, 7 S. E. 182, 188, and concludes the discussion by stating that although the question here presented was not then under consideration, that case held that an ex parte order of probate could not be considered as evidence “so as to relieve the proponent of the burden of proof on the trial of the issue devisavit vél non.”
I do not think that case can be considered as any authority for the conclusion that the record of the order of probate is not entitled to be received and weighed by the jury in determining the issue devisavit vel non. The bill attacking the will alleged it was a forgery. The will was holographic and the order of probate showed that it was admitted to probate on the testimony of “Thomas and A. G. Hall (who) appeared in court, and being duly sworn, testify and say that they each are well acquainted with the handwriting of the said Lydia Hall, and believe that the said will was wholly in her handwriting.”
It does not appear from the opinion just bow the order of probate became a part of the evidence in the case, but it does appear that A. G. Hall, who testified in behalf of the will in the ex parte probate, was called as a witness on the issue before the jury, and by his testimony and his acts when on the stand it was shown that he was unable to read. When this fact was considered with the order itself it was sufficient to cast serious doubt on his credibility, either before the probate court or the jury. The only other witness who testified for the proponents in either court was Thomas Hall, the propounder and beneficiary under the will.
The opponents of the will offered evidence tending to prove that the paper purporting to be the will of the testatrix was wholly in the handwriting of Thomas Hall. This evidence was excluded by the trial court. This court stated that, “If it (the will) was not wholly written and signed by her it is not her will; and so, if it was written either in *211whole, or in part, by Thomas Hall, the propounder, it is not only not her will, but is a fraud and forgery as charged in the bill. Therefore, while it is sufficient to show by competent evidence that a pretended holograph will is not in the handwriting of the decedent, yet it is perfectly competent and even desirable, when it can be done, to prove by whom it was written, so as to demonstrate the invalidity of the writing, though absolute demonstration is not required, and, in most cases, is not attainable.”
Regardless of how the order of probate became a part of the evidence, its contents come within the strict letter of Code, section 5261. The material part of the order of probate in the case under consideration reads as follows:
“The last will and testament of Agnes Y. Harris, late of this city, deceased, was this day produced before me by R. D. Harris, the executor therein named, and fully proved by the oaths of W. Scott Parker and Bessie P. Mullen, subscribing witnesses thereto, and was thereupon ordered to be recorded.”
This order became part of the evidence in this case under the following circumstances: The clerk who probated the will was called as a witness by the proponents, and while on the stand, after identifying and reading his order of probate, he stated, in reply to a question, what the subscribing witnesses had said in their testimony before him. Objection was made to his answer, and later motion was made to strike it from the consideration of the jury. In making the motion, the attorney for appellees stated that “the only thing proven by the proponents is the proper probate of the will, and as the court sustained me in my motion to strike out the hearsay evidence there is no evidence of the testamentary capacity.” It therefore affirmatively appears that there was no objection to the introduction of the order of probate and no motion was made to strike it from the consideration of the jury.
Eliminating that part of the statute which is not germane to the question, it reads thus: “The record of what is *212proved * * * may, on such trial, be admitted as evidence, to have such weight as the jury shall think it deserves.”
Even if it be held (the majority does not so hold) that the word “may” in the statute gives to the trial court discretion in admitting or rejecting the record, in this case it is a part of the evidence, without objection, and remained before the jury with no evidence to contradict it. However, the instruction of the court prevented the jury from giving it any consideration.
In Brown v. Hall, supra, the order contains a brief summary of the testimony of the witnesses before the probate court. The majority opinion draws a distinction between that order and the one in the case at bar. The order here states that the will was “fully proved by the oaths of” the subscribing witnesses. Both are valid orders of probate and if not attacked within the specified time become final. When a court of competent jurisdiction enters a formal order stating that a will is fully proven by the oaths of the subscribing witnesses, it can only mean the due execution of the will, which, for a non-holographic will, is that the testator signed or acknowledged the signature in the presence of two witnesses, who at his request and in his presence and in the presence of each other, subscribed their names thereto as witnesses. To admit the order in one case as evidence for the consideration of the jury and deny it in the other, would make the form of the order, rather than the substance, the test of its admissibility. To make such a refined distinction would serve no good purpose, and might work incalculable hardship in establishing muniments of title to property.
Due execution of a will, when proven, raises a presumption of sanity, and is sufficient, in the absence of evidence to the contrary, to establish the same. Rust v. Reid, 124 Va. 1, 97 S. E. 324; Culpepper v. Robie, 155 Va. 64, 154 S. E. 687; Hentz v. Wallace, 153 Va. 437, 150 S. E. 389. In the case at bar, the will is regular on its face, contains a complete attestation clause, and recites compliance with all *213the statutory requirements for the due execution of a non-holographic will, to which is subjoined the names of the two subscribing witnesses.
In a note found in 76 A. L. R., page 617, this is said: “It is a well-established rule that a complete attestation clause reciting the observance of all statutory requirements raises a presumption of the due execution of a will if there is no contest as to the genuineness of the signature of the witnesses, or that of the testator, or after these signatures are proved to be genuine.”
It was not claimed in the case at bar that the signatures of the testatrix and the subscribing witnesses were not genuine. It was stated in the record, and not denied, that the only ground of contest was as to the competency of the testatrix. If any weight at all is given to the record of the ex parte proceeding, and the statute states distinctly that it shall have such weight as the jury thinks proper, it is sufficient to affirm the order of probate. To hold otherwise would result in setting aside a will which has been duly probated before a court of competent jurisdiction, without a scintilla of evidence tending to show any irregularity in execution, or otherwise, and deprive the proponents of the presumption of sanity.
Epes, J., concurs in this dissent.