Bill in chancery to set aside a will. The question as to the validity of the will was submitted to a jury. Verdict for the defendants ; and the bill dismissed.
One of the errors assigned is, that the jury have found the will to be valid, when it is not; and the appellants pray that this assignment of error may be tried by a jury. Demurrer and joinder.
The prayer annexed to this assignment of error is improper and must be struck out. The statute authorizes errors in fact to be assigned in cases of wills, but the questions arising on the assignment must be determined by the Court. Rev. Stat. 1838, p. 204.
P. Sweetser and H. Brown, for the appellants. C. Fletcher and 0. Butler, for the appellees.The question arising on the assignment of error before us, will be examined when the cause shall be submitted, and if, according to the testimony contained in the record, the error be found to exist, the judgment will be reversed, and a new trial directed in the Circuit Court.
Per Curiam.The demurrer is overruled, with leave to join in error.