— This was an action to contest a will. The complaint is in one paragraph and in the usual form. The error relied on for reversal is the overruling of the motion for a new trial, and arises upon exceptions to the giving of certain instructions.
1. The evidence is not in the record, hence if the instructions were proper under any evidence properly admitted under the issues in the case, no reversal is authorized, but on the other hand, if the instructions given are wrong under any state of facts that could be proven under the issues in the case and direct the minds of the jury to an improper basis on which to predicate a verdict, the cause will be reversed, though the evidence is not in the record.
2. The first instruction complained of is No. 10, and reads as follows: “Gentlemen of the jury, if you find by a preponderance of the evidence in this ease that the will in question has been admitted to probate, then I instruct you that such fact is prima facie evidence that the deceased Hugh M. Kilgore was a person of sound mind at the time the will in question was executed, and that said will was duly and properly executed.”
The ordinary function of most so-called presumptions of law, as they relate to the law of evidence, is to cast on the party against whom the presumption works the duty of going forward with evidence, and when that duty is performed, the presumption is *684functus officio and has no proper place in the instructions to a jury. Thayer, Prelim. Treatise on Ev. 339, 346; Chamberlayne, Mod. Law of Ev. §§1021, 1085; Breadheft v. Cleveland (1915), 184 Ind. 130, 110 N. E. 662. Elliott in his work on Evidence says: “A presumption operates to relieve the party in whose favor it operates from going forward in argument or evidence, and serves the purpose of a prima facie case until the other party has gone forward with his evidence, but, in itself, it is not evidence, and involves no rule as to the weight of evidence necessary to meet it.” Elliott, Evidence §3. “The weight of authority is against regarding a presumption as evidence.” Jones, Com. on Ev. §10.
In Bates v. Pricket (1854), 5 Ind. 22, 61 Am. Dec. 73, this court said: “A presumption, like a fact proved, remains available to the party in whose favor it arises, until overcome by opposing evidence.” That statement has been followed by -this court in Adams v. State (1882), 87 Ind. 573, 575; Cleveland, etc., R. Co. v. Newell (1885), 104 Ind. 264, 273, 3. N. E. 836, 54 Am. Rep. 312; Louisville, etc., R. Co. v. Thompson (1886), 107 Ind. 442, 446, 8 N. E. 18, 9 N. E. 357, 57 Am. Rep. 120; Harris v. Ross (1887), 112 Ind. 313, 13 N. E. 873; Muncie Nat. Bank v. Brown (1887), 112 Ind. 474, 478, 14 N. E. 358; Pedigo v. Grimes (1888), 113 Ind. 148, 151, 13 N. E. 700; Montgomery v. Wasem (1888), 116 Ind. 343, 355, 15 N. E. 795, 19 N. E. 184; Old Nat. Bank, etc. v. Findley (1892), 131 Ind. 225, 228, 31 N. E. 62; Hilgenberg v. Northup (1893), 134 Ind. 92, 94, 33 N. E. 786; Welty v. State (1914), 180 Ind. 411, 422, 100 N. E. 73. In the case of Welty v. State, supra, this court said: “Our conclusion is, that whether-it be a presumption of malice, or of innocence, it is an administrative assumption of a prima facie char*685acter, and that each yields before evidence showing the facts.” In Steinkuehler v. Wempner (1907), 169 Ind. 154, 161, 81 N. E. 482, 15 L. R. A. (N. S.) 673, this court said: “The material point determined is that the testamentary capacity of the testator must be established by the proponents, and is adjudged by the order admitting the will to probate. In the absence of objections, the general presumption of law in favor of sanity would ordinarily supply the requisite proof, and in case of a contest would suffice to make a prima facie case in favor of the proponents. ‘ A presumption, like a fact proved, remains available to the party in whose favor it arises, until overcome by opposing evidence.’ ” Bates v.Pricket, supra. In United States v. Ross (1875), 92 U. S 281, 23 L. Ed. 707, where the claimant relied on the presumption that a public officer does his duty, the court, after referring to the statement made by Best, in his Treatise on Evidence, to the effect that while some of the incidents of official action may be presumed, in the absence of evidence to the contrary, said: “Nowhere is the presumption held to be a substitute for proof of an independent and material fact.” Wigmore in his work on Evidence, §2491 states: “If the opponent does offer evidence to the contrary (sufficient to satisfy the judge’s requirements of some evidence) the presumption disappears as a rule of law, and the case is in the jury’s hands free from any rule. It is therefore a fallacy to attribute (as do some judges) an artificial probative force to a presumption, increasing for the jury the weight of the facts even when the opponent has come forward with some evidence to the contrary.” In 9 Encyclopedia of Evidence 885, we find the following: “Since the function of a presumption logically considered is merely to impose the burden of going forward with *686the evidence upon the party against whom it operates, .when contrary evidence, is adduced the presumption disappears, although the facts upon which it rested still remain as evidence in the case. A presumption therefore is not evidence.” The case of Befay v. Wheeler (1893), 84 Wis. 135, 53 N. W. 1121, is an authority upon the proposition that mere prima facie intendments cannot be so projected into a case as to give probative force to them as against the opposing evidence. In that case plaintiff relied upon the familiar rule that all reasonable presumptions must be made in favor of the regularity of public officers. The court said: “This rule is well established, but it does not appear to be applicable under the present circumstances. It is a mere presumption of law, which operates only in case of absence of evidence. It disappears entirely in the presence of positive, uncontradicted evidence upon the subject.”'
In Elliott on Evidence, §93, the author has this to say: “It is sometimes said that the presumption will tip the scale when the evidence is balanced. But in truth, nothing tips the scale but evidence, and a presumption, being a legal rule or a legal conclusion, is not evidence.”
In Ausmus v. People (1910), 47 Col. 167 107 Pac. 204, 216, 19 Ann. Cas. 491, 501, the court, in speaking of so-called presumptions, or rather inferences, said: “Upon whatever basis they rest they operate in advance of evidence or argument, or, irrespective of each, by taking the same for granted; by assuming its existence. * * * The fact, or the deduction from the facts in evidence, in the particular inquiry may be otherwise than the presumption. To say that a certain thing is a ‘presumption of fact’ is to attempt to mandamus the human mind. One mind may infer from certain facts a different result *687than that deduced from the same facts by another mind. For a court to advise a jury that a certain thing is a presumption ‘of fact,’ and not ‘of law,’ and that they are at liberty to presume certain things from facts in evidence, is more nearly to comment upon the weight of evidence, than to advise that ‘the law presumes’ certain things when certain facts are proven.” Wigmore in his work on Evidence, §2491, asserts that: “The distinction between presumptions ‘of law’ and presumptions ‘of fact’ is in truth the differences between things that are in reality presumptions * * * and things that are not presumptions at all. A presumption * * * is in its characteristic feature a rule of law. * * * The distinction between presumptions of fact and of law was a mere borrowing of misapplied Continental terms. There is in truth but one kind of presumption; and the term ‘presumption of fact’ should be discarded as useless and confusing.” Prof. Thayer in his Preliminary Treatise on Evidence, p. 339, in commenting on presumptions of law and presumptions of fact says that the discrimination between them is one of no special significance in the law of evidence; and states further: “But the essential character and operation of presumptions, so far as the law of evidence is concerned, is in all cases the same, whether they be called by one name or the other; that is to say, they throw upon the party against whom they work, the duty of going forward with the evidence; and this operation is all their effect, regarded merely in their character of presumption.” In Ham v. Barret (1859), 28 Mo. 388, the court, speaking of an instruction asked, and refused by the court, said: “Where a presumption is one of fact merely, the court is not warranted in declaring it to the jury as a presumption authoritatively raised by *688law, but should direct them that from the evidence it is their province to determine whether they will raise the presumption or not. The jury, looking to the bench for the law, would naturally take it that such a declaration was binding and left them no discretion. Where the facts are before the jury, the presumptions or inferences they warrant are questions purely for" them.” In Justice v. Lang (1873), 52 N. Y. 323, the court said: “ ‘Presumptions of law are, in reality, rules of law and part of the law itself; and the court may draw the inference whenever the requisite facts are developed, whether in pleading or otherwise, while all other presumptions, however obvious, being only inferences of fact, cannot be made without the intervention of a jury’. * * * But presumptions of fact, which come within the province of the jury, are said to be but mere arguments, of which the major premise is not a rule of law, and are to be judged by the common and received tests of the truth of propositions and the validity of the arguments. Presumptive evidence and the presumptions or proofs to which, it gives rise are not indebted for their pro= bative force to any rule of positive law; but juries, in inferring one fact from others which have been established, do nothing more than apply, under the sanction of the law, a process of reasoning, the force of which rests on experience and observation, and such inferences are presumptions of fact.” In City of Indianapolis v. Keeley (1906), 167 Ind. 516, 79 N. E. 499, this court said that notwithstanding the statute relieving plaintiff, in personal injury suits from the necessity of showing noncontributory negligence, a trial court was not justified in giving an instruction, concerning the duty of the plaintiff to exercise ordinary care; that “the presumption in this case is that he performed that duty and exer*689cised ordinary care.” The exact language of the court is: “The burden of showing contributory negligence is upon the defendant, but it may be established by a fair preponderance of the evidence upon that issue, and a defendant is not required to have a preponderance plus so much evidence as may be deemed necessary to outweigh and overthrow a presumption of law in favor of the plaintiff.”
We are of the opinion that the presumption or prima facie case made out by an ex parte probate of a will, when contested under the provisions of §3154 Burns 1914, Acts 1911 p. 325,-becomes of no avail as evidence to be considered by the court- or jury, as soon as evidence is introduced in opposition thereto. It is then incumbent upon the proponents of the will or those interested in upholding it to introduce in evidence the facts at their disposal to rebut the evidence of contestors, thereby giving the court or jury full opportunity to determine who has a preponderance of the evidence.
The instruction under consideration is erroneous in that it permitted the jury to consider as evidence of testator’s soundness of mind, the fact that his will had been admitted to probate, upon which the presumption arises that testator was at the time a person of sound mind, and of disposing memory, and duly and properly executed his will. With evidence pro and con on the subject of sanity of testator, the probate of the will is not evidence and is not even a proper basis from which the jury had a right to draw an inference that the testator was of sound mind when he executed the will in question.
Other questions are raised upon other instructions *690given, but they are not likely to be encountered on another trial, and which are not, therefore, determined.
For error in giving instruction No. 10, the judgment is reversed, with instructions to the trial court to sustain appellant’s motion for a new trial.
Note. — Reported in 114 N. E. 446. Burden of proof as to testamentary capacity after probate of will, 36 L. R. A. 739; Ann. Cas. 1914C535.