delivered the opinion of the court:
In this controversy as to the. validity or invalidity of the instrument purporting to be the last will and testament of David Thompson, the court was asked for several instructions by both the plaintiffs and defendants. But the court being of opinion that the preponderance of testimony was so great in favor of the will, declined to consider or to give any of the instructions asked, and instructed the jury peremptorily to find for the will. And the only question which it is necessary to decide is, whether the court was authorized by the principles of law to give this peremptory instruction.
One of the reasons assigned by the court forgiving this instruction is, that there had been, upon a previous occasion, in the same ease, one “hung jury,” and he feared another. Another reason was, that should the jury find against the will, he should feel constrained to set aside the finding and grant a new trial.
The first reason assigned by the court for its instruction ought, it would seem, to have produced a different conclusion. The fact that there had been one “hung jury” in the case would rather argue that the testimony was conflicting, and presented such a state of case as to make it the peculiar province of the jury to weigh the testimony untrammelled by the court, and decide the case according to the weight of the evidence. The other reason grew out of the great preponderance of the testimony in favor of the will, and the duty which the court would feel itself under to set aside the verdict should the verdict be against the will.
This reason is also insufficient, we appehend, to authorize a peremptory instruction. Testimony bad been given upon both sides, and that on the part of the contestants of the will, however weak in comparison with that given on the part of the defendants, certainly conduced to show that the testator might not have been of disposing mind and memory *28at the execution of the will. The court, in stating that there was a great preponderance of testimony in favor of the will, thereby conceded that there was some testimony which might tend to a contrary conclusion. But he thought that when the testimony was weighed and compared it greatly preponderated in favor of the will — so much so, that he would have felt constrained to set aside a finding against the will, and grant a new trial. Our own opinion decidedly and unhesitatingly coincides with that of the circuit judge, that the great weight of the testimony was in favor of the will, and that its preponderance in its favor was so great that, had the finding been against the will it would have been his duty to set aside the verdict and grant a new trial. Still, it was the province of the jury, and not of the court, to weigh the testimony, and they should have been allowed to do so, unfettered by a peremptory instruction. The contestants of the will had a right to a verdict by the jury, free from the restraint which was put upon them.
2. Upon the trial of an. issue of fact by a jury, the instruction of the court should be hypothetical in all cases where there is evidence on both sides conducing to prove a particular fact or facts, and against it.It is not the business of the court, when testimony has been produced upon both sides, conducing to establish the positions of both parties, to interpose, by way of peremptory instruction, and take from the jury a consideration and comparison of the testimony on both sides of the controversy. His powers, in such a state of case, are supervisory. He can revise the finding, and if, in his opinion, the finding is obviously and palpably against the weight of the testimony, he may, and will, set aside the verdict. But it is not the province of the court to interpose in the first instance by way of peremptory instruction, and diréct a finding for one of the parties. Each party has a right to a verdict from the jury after an untrammelled investigation of the facts of the case under hypothetical, and not peremptory, instructions, whenever testimony has been produced upon both sides tending to opposite conclusions. The court, in the exercise of its supervisory power over verdicts, *29and in setting them aside, may not inflict such serious injury to the successful party as by a peremptory instruction to find against him. If his verdict be set aside, he will have another opportunity, upon another trial, of strengthening his case by additional testimony. Whereas, if he be cut off by a peremptory instruction to find against him, there is an end of the case, and he will enjoy no further opportunity of strengthening his proof.
3. A party may, upon the evidence of his antagonist alone, assuming that evidence to be true, and every fact which it conduces to-prove, move a peremptory instruction, which the court may give, (2 Marshall, 424,) but not upon his own evidence alone, or on his own evidence and that of his antagonist, unless his own evidence consists of record or uncontested official documents or writings.In the case of Dallam vs. Handley, 2 Marshall, 424, the court say: “It is a rule, that a party may move upon the evidence of his antagonist, assuming that evidence, and every fact which it conduces to prove, as true, and ask the court for a .positive instruction. But he cannot make such a motion on his own evidence alone, or on his own evidence mingled with, or added to, that of the opposite party, unless his own evidence is composed of record, or uncontested official documents, or writings.” The principle which is recognized in this instruction we take to be this: That, admitting the testimony of the party to be true, against whom a peremptory instruction is asked, yet the testimony of the other party being incontrovertible record testimony, no room is left for comparison, and the finding of the jury can be but one way. In such a state of case a peremptory instruction is authorized ; but it is not authorized where the testimony on both sides is of the same kind and tendency, and where the jury must compare and weigh it, and when they can give credit, or refuse to give credit, to either a part or the whole of the testimony on each side.
We do not consider the principle laid down in the case of Rogers vs. Rogers, 2 B. Monroe, 324, referred to by the counsel of the appellees, as in conflict with the principle recognized in the case of Dallam vs. Handley, supra. In the case of Rogers vs. Rogers, the court instructed the jury positively, that there was no evidence of either fraud or improper influence on the testator. And the court say in regard to this in*30struction : “It cannot be prudent thus to control the jury as to such [acts as fraud and sinister influence in the procurement of a will. But, whether there was any evidence of either of these facts in this case, was a question which the court had aright to decide; and we are of opinion that there was no evidence which could have authorized a rational and unprejudiced jury even to suspect that t.he will had been procured by any unlawful or improper influence. Consequently the instruction should not be deemed prejudicial, even though it had not been technically proper or most prudent.” The circuit court, certainly had a right, as laid down in this case of Rogers vs. Rogers, to decide whether there was any evidence of either fraud or improper influence, and if there were no evidence of cither of these facts, so to tell the jury positively; and we coincide with the court in that case, that a verdict ought not to be disturbed, which was founded upon a peremptory instruction, where there was no evidence which could have authorized a rational and unprejudiced jury even to suspect particular .facts, the existence of which might authorize a different conclusion from that contained in a peremptory instruction. But, in the present case, we are not prepared to say that there was no testimony which could have authorized a rational and unprejudiced jury to suspect that the instrument purporting to be the last will and testament of David Thompson was not his true last will and testament; especially as there had been one “hung jury” in the case, composed, as we suppose, of rational men, and perhaps of unprejudiced men. It is true that, inking the testimony on both sides to be from witnesses of equal general character and credit, and comparing the testimony, it certainly preponderates greatly in favor of the will. But the very idea contained in the word “preponderate,” in this connection, shows that there was testimony on both sides admitting of investigation and comparison by rational men, and *31hence, that a peremptory instruction was unauthorized.
It appears, in the current history of the country, that a strange prejudice exists in the minds of some against last wills and testaments, unless they make wlmt, in their opinion, is an equal distribution of the testator’s property among his children. This sentiment or prejudice is at war with the right which every rational man has, according to our'law, to dispose of his property by will to whom he pleases. And, it may be, that the circuit court apprehended the influence of some such sentiment as this in the present case, which induced him to fear another “hung- jury.” However this may be, we think the instruction was unauthorized by the testimony in the cause, and that, however it may have preponderated in favor of the will, the common course, and beaten track, should have been pursued, of allowing the jury, unfettered by a positive instruction, to have investigated and compared the testimony.
Wherefore, the judgment is reversed, and the cause remanded for a new trial and further proceedings not inconsistent with this opinion.