delivered the opinion of the court:
In July, 1853, a paper purporting to be the last will of Sarah Thompson, deceased, was presented by Barnabas Thompson to the county court of Washington, for probate. The heirs-at-law objected to its admission to probate, and, upon hearing, their objections were sustained, and probate refused. An appeal from this judgment was prosecuted to the circuit court of the county, and upon the finding of a jury against the will the circuit court refused a new trial, and affirmed the judgment of the county court. From that order an appeal is-prosecuted to this court.
It is complained here—
1st. That improper evidence was admitted.
2d. That the verdict was against the evidence.
3d. That the court erred in its instructions to the jury.' And, '
4th. That the jury was not properly sworn.
1. That provision of the Revised Statutes, chap. 106, sec. 40, in regard to proof of what deceased and absent witnesses had stated on former trials in regard to the matters in controversy •in will cases, was intended to apply particularly to cases where wills had been admitted to record, and again contested by others not parties to the first probate in the county court —thereby perpetuating the testimony--a n enlargement of the common law rule. But the right to introduce such evidence against parties privy on laying the proper foundation therefor is not alfected by the statute.*6221st. Upon the trial in the county court, Thurman, the draftsman of the will, was introduced as a witness to prove that he had written the wall at the instance and under the direction of the appellant, and notin the presence of the testatrix. Before the trial of the issue in the circut court he died; and notwithstanding the objection of appellant, the circuit judge permitted proof to be made of the statements of the deceased witness on the former trial.
It is objected that this evidence was inadmissible upon two grounds:
1st. That the evidence of the deceased witness, on the trial in the county court, had not been spread upon the record, and was not in the form of a deposition.
In support of this ground, it is contended that the language of the Revised Statutes, (chap. 106, sec. 40,) virtually excludes any proof of what deceased or absent witnesses may have deposed on the trial in the county court, upon another trial involving the validity of the will, unless the same is preserved in the manner provided in that section, which reads 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 they deserve.”
It will be noticed that this, and the preceding section, follow immediately that section providing for the contesting of wills by non-residents, and authorizing a procedure in chancery by such persons who may choose to contest a will, within a certain time after its admission to probate. The manifest object of the section in question was to give to the will once admitted, and to those claiming under it, as against such non-resident contestants, and others, strangers to the proceeding in the county court, the *623benefit of the proof received in the county court on the admission to probate, provided it was preserved either by an entry of record or in the shape of depositions. Much injustice might be done to devisees by depriving them of such testimony in contests involving the validity of a will arising between them and strangers to the proceeding in the county court, years after its admission to probate, when, by reason of death or removal of material and important witnesses, the very evidence which imparted validity to the will, would, except for the provision mentioned, be cut off. It was intended by that section, to furnish to parties interested an opportunity of perpetuating the testimony upon which the will was established, and making it available in all future trials touching its validity. The object was to enlarge the common law rule respecting the admissibility of such evidence, by rendering it available, where properly preserved, against strangei’s, but not to affect it so far as parties privy to the former trial were concerned. The right to introduce such secondary evidence, upon laying the proper foundation therefor, as against parties privy and having an opportunity to cross-examine, is not, in our opinion, at all impaired or restricted by the section relied on.
2. It is not witness, introduced to prove what a deceased or absent witnesss or stated on a former trial, should be able to give the precise words used by such if he be able to give the substance of all that was sworn to by the dec’d or absent witness. (1 Greenleaf’s Ev. 96.)The second objection is, that the witnesses who testified as to what Thurman said on the former trial, failed to prove all that he said on his examination r in chief and cross-examination.
The rule formerly was that such proof was inadmissible, unless the witness called to prove what ,, . , , the deceased witness testified upon the iormer trial, could repeat his precise words. (4 Tennessee Reports, 290.) But this rule has been relaxed, because, as has been said, “it goes, in effect, to exclude this kind of evidence altogether, or to admit it only where, in most cases, the particularity and minuteness of the witness’ narrative, and the exactness with which he undertakes to repeat every word of the deceased’s testimony, ought to excite just doubts of his own *624honesty, and the truth of his evidence.” (Greenleaf on Evidence, 196.)
3. In will cases it is the province of the jury to decide, and if there has been no misdirection of the court upon the questions of law involved, the court should not disturb the finding,unless it be so unsupported by proof as to require it. 4. This court has not the power to reverse a decision of ajury, and judgm’t of the court, in a will case, because the jury were not sworn to aay how much of the paper produced was the will of the testator, if the oatfe of the jury required them to decide upon the validity of the whole will.Such objection should have been made at the swearing of the jury. If substantial right of the party has been prejudiced. —for which alone this court can reverse.*624It is now considered sufficient, and has so been held by this court, if the witness is able to state the substance of all that was sworn in the former trial.
Here the witness does not, in so many words, state, or undertake to state, what Thurman said upon his examination in chief and cross-examination, and to distinguish as to each part of his evidence, but he states generally “the substance of dll his evidence.” This necessarily includes what was elicited on both examinations, cross and in chief, and is within the rule declaring such evidence admissible.
We are, therefore, of opinion that no error was committed in permitting proof of what Thurman said on the former trial.
2d. Without noticing in detail the evidence for and against the will, we deem it sufficient to say that it was somewhat contradictory, and presented an inquiry to be responded to by a jury under proper instructions of the court. The response of the jury in this case is not so variant from the proof as to authorize the interference of the court, and we think the circuit judge properly refused to set aside the finding on the ground that it was opposed to the testimony.
3d. We perceive no substantial objections to the propositions .of law contained in the instructions. They are somewhat obscure in phraseology, but not enough so in our opinion to have confused or misled the jury.
4th. That the jury was not sworn to say “how much of the testamentary paper produced was the will of the testatrix,” is not an available objection here. It would have been unavailable after verdict in the court below. The question to be decided by the jury involved the validity of the whole, and not apart of the will, and we cannot perceive how the manner of swearing the jury, which was in the usual mode in such cases, could have operated to the *625prejudice of appellant. If he had desired the form of the oath prescribed by the statute to be pursued, he should have objected when the jury were sworn.
It is only for errors prejudicial to the substantial rights of the appellant, that this court can reverse a judgment, and the departure from the mode of swearing a jury prescribed by the statute, when not objected to at the proper time, as in this case, does not, in our opinion, come within that class of errors.
We are, therefore, of opinion that no error exists in the record, and the judgment is affirmed.