Mr. Presiding Justice Adams
delivered the opinion of the court.
It is evident from the record that this cause was tried on the theory that it ivas incumbent on appellant to prove the regularity of the proceedings in the Probate Court on the application to admit the will to probate. This theory is erroneous. Rigg v. Wilton, 13 Ill. 15; Tate v. Tate, 89 Ill. 42; Harp v. Parr, 168 Ill. 459; Craig v. Southard, 148 Ill. 37, 43.
In Rigg v. Wilton the court say:
“The issue is to be submitted to the jury as a new; and original question, and determined exclusively upon the evidence introduced before them. The trial is de novo, and without regard to the fact that the instrument has been admitted to probate.”
While the admission of the will to probate by the Probate Court is made by section 7 of the statute a condition precedent to the right to file a bill in chancery to contest a will (In re Will of Ingalls, 148 Ill. 287,) and it must appear that the condition has been fulfilled, it is not permissible for the proponent to put in evidence the order admitting the will to probate (Craig v. Southard, 148 Ill. 37, 43), nor is this necessary when the admission to probate is not denied, because the admission to probate being a condition precedent, the complainant must aver in his bill fulfillment of the condition, as appellee has done in the present case.
The will, a copy of which is attached to the bill and made a part thereof, and which is set out in full in the statement preceding this opinion, was produced in court by the file clerk of the Probate Court, who testified that it was a paper purporting to be the will of Mary Brady, and that it was filed in the Probate Court at the time shown by the file mark, all of which was admitted by appellee’s counsel.
The will, on its face, appears to have been properly signed by the testatrix, who, as the evidence shows, could not read, and so made her mark, and is attested by two witnesses, as required by the statute. It is not objected in argument by appellee’s counsel that the will was not properly signed or attested. The testimony of the attesting witnesses, Paul Kaske and Kurtz B. Hare, given in the Probate Court, was read on the trial, not only without objection, but with the consent of appellee’s counsel, and their testimony, together with that of Mrs. Stone, which is substantially set forth in the preceding statement, made a prima facie showing that the paper produced in court and purporting to be the last wall and testament of Mary Brady, deceased, and which the court refused to admit in evidence, is her last will and testament. Holloway v. Galloway, 51 Ill. 159; Harp v. Parr, 168 Ill. 459, 477-8; Huggins v. Drury, 192 Ill. 535.
The evidence of the witness Shannon, that Mary Brady was unconscious March 3, 1900, the day she executed the will, conflicts with the testimony of appellant’s witnesses, but when there is a conflict in the evidence, the jury must decide as between the witnesses.
It is contended by appellee’s counsel that, as there was no exception to the refusal of the court to admit the will in evidence, such refusal can not be assigned as error or reviewed here. We are of opinion, contrary to the views expressed by appellant’s counsel, that the opinion in Tucker v. Cole, 169 Ill. 150, is decisive that, on a trial in chancery such as was had in this cause, the practice is the same as at law, and that exceptions to rulings of the court must be preserved in-order to warrant a reviewing court to reverse a decree because of them. Appellant’s counsel, however, excepted to the instruction of the court taking the case from the jury, and has assigned the giving of that instruction as error. The issue prescribed by section 7 of the statute is, “whether the writing produced be the will of the testator or testatrix or not.” The instruction given to the jury by the court is, “The jury are instructed to find the issues for the complainant, and that the paper offered here is not the last will and testament of Mary Brady, deceased.” The word “produced,” in section 7 of the statute, must be understood as meaning produced in evidence. It would be an anomaly in practice, and could not have been contemplated or intended by the legislature, that the jury should render a verdict in regard to a paper not in evidence. The verdict of a jury must be based on the evidence and the instructions of the court. It is their province to find the facts from the evidence. In arriving at their conclusions of fact, they must consider solely the evidence in the cause, and it is proper and not unusual to instruct the jury that they are not to consider evidence offered but excluded by the court.
The writing alleged to be the last will is not offered in evidence as a will requiring no proof to sustain it, but as a writing claimed to be the last will; and, when it is admitted in evidence, it devolves on the proponent to make prima facie proof that it is the last will of the person whose will it is claimed to be. That the writing claimed to be the last will of Mary Brady shall be in evidence is indispensable to the inquiry whether or not it is in fact her last will, and unless it is in evidence, the jury can not render a valid verdict in regard to it. It was, therefore, reversible error to instruct the jury to render a \rerdict that the paper “ offered,” ■which was claimed to be Mary Brady’s last will, but which was not in evidence, was not her last will. But if the word “ produced,” in section 7, should be construed as the court practically, at least, construed it, in giving the instruction, namely, as meaning merely produced in court, without being put in evidence, this would not avail appellee, because the writing purporting to be Mary Brady’s last will was not only produced in court, but was offered in evidence, and we have shown that there was evidence tending to prove that the writing was her last will and testament. The evidence, as we think, would have fully warranted the jury in finding for the proponent, had the writing been admitted in evidence. Thus, whatever construction is adopted, the giving of the • instruction was error which necessitates reversal of the decree.
When appellant’s counsel offered to read the testimony of the witnesses to the will, given in the Probate Court, the court ruled that all the testimony, including that of Shannon, witness for the contestants, must be read, or none, and appellant’s counsel was compelled to read Shannon’s testimony as a condition of reading the testimony of the subscribing witnesses to the will. Mo exception was preserved to this ruling, but as there must be a new trial of the cause, if not abandoned by appellee, we think it proper to consider the ruling. We think the ruling was erroneous. All that the proponent of the will was bound to do, was to make a prima facie case, and this only required the reading of the testimony of the subscribing witnesses to the will, and putting the will in evidence. Graybeal v. Gardner, 146 Ill. 337, 343, and cases cited. He was not bound to read the testimony of Shannon, and thus, apparently, make Shannon his own witness, as appellee’s counsel claim he did. After the reading by appellant’s counsel of the testimony of Kaske and Hare, it would have been competent for the opposing counsel to read the testimony of Shannon, which, if he had done, the testimony of Dora Hayes, in rebuttal, might have been read by appellant’s counsel.
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Mr. Presiding Justice Adams
delivered the opinion of the court.
It is evident from the record that this cause was tried on the theory that it ivas incumbent on appellant to prove the regularity of the proceedings in the Probate Court on the application to admit the will to probate. This theory is erroneous. Rigg v. Wilton, 13 Ill. 15; Tate v. Tate, 89 Ill. 42; Harp v. Parr, 168 Ill. 459; Craig v. Southard, 148 Ill. 37, 43.
In Rigg v. Wilton the court say:
“The issue is to be submitted to the jury as a new; and original question, and determined exclusively upon the evidence introduced before them. The trial is de novo, and without regard to the fact that the instrument has been admitted to probate.”
While the admission of the will to probate by the Probate Court is made by section 7 of the statute a condition precedent to the right to file a bill in chancery to contest a will (In re Will of Ingalls, 148 Ill. 287,) and it must appear that the condition has been fulfilled, it is not permissible for the proponent to put in evidence the order admitting the will to probate (Craig v. Southard, 148 Ill. 37, 43), nor is this necessary when the admission to probate is not denied, because the admission to probate being a condition precedent, the complainant must aver in his bill fulfillment of the condition, as appellee has done in the present case.
The will, a copy of which is attached to the bill and made a part thereof, and which is set out in full in the statement preceding this opinion, was produced in court by the file clerk of the Probate Court, who testified that it was a paper purporting to be the will of Mary Brady, and that it was filed in the Probate Court at the time shown by the file mark, all of which was admitted by appellee’s counsel.
The will, on its face, appears to have been properly signed by the testatrix, who, as the evidence shows, could not read, and so made her mark, and is attested by two witnesses, as required by the statute. It is not objected in argument by appellee’s counsel that the will was not properly signed or attested. The testimony of the attesting witnesses, Paul Kaske and Kurtz B. Hare, given in the Probate Court, was read on the trial, not only without objection, but with the consent of appellee’s counsel, and their testimony, together with that of Mrs. Stone, which is substantially set forth in the preceding statement, made a prima facie showing that the paper produced in court and purporting to be the last wall and testament of Mary Brady, deceased, and which the court refused to admit in evidence, is her last will and testament. Holloway v. Galloway, 51 Ill. 159; Harp v. Parr, 168 Ill. 459, 477-8; Huggins v. Drury, 192 Ill. 535.
The evidence of the witness Shannon, that Mary Brady was unconscious March 3, 1900, the day she executed the will, conflicts with the testimony of appellant’s witnesses, but when there is a conflict in the evidence, the jury must decide as between the witnesses.
It is contended by appellee’s counsel that, as there was no exception to the refusal of the court to admit the will in evidence, such refusal can not be assigned as error or reviewed here. We are of opinion, contrary to the views expressed by appellant’s counsel, that the opinion in Tucker v. Cole, 169 Ill. 150, is decisive that, on a trial in chancery such as was had in this cause, the practice is the same as at law, and that exceptions to rulings of the court must be preserved in-order to warrant a reviewing court to reverse a decree because of them. Appellant’s counsel, however, excepted to the instruction of the court taking the case from the jury, and has assigned the giving of that instruction as error. The issue prescribed by section 7 of the statute is, “whether the writing produced be the will of the testator or testatrix or not.” The instruction given to the jury by the court is, “The jury are instructed to find the issues for the complainant, and that the paper offered here is not the last will and testament of Mary Brady, deceased.” The word “produced,” in section 7 of the statute, must be understood as meaning produced in evidence. It would be an anomaly in practice, and could not have been contemplated or intended by the legislature, that the jury should render a verdict in regard to a paper not in evidence. The verdict of a jury must be based on the evidence and the instructions of the court. It is their province to find the facts from the evidence. In arriving at their conclusions of fact, they must consider solely the evidence in the cause, and it is proper and not unusual to instruct the jury that they are not to consider evidence offered but excluded by the court.
The writing alleged to be the last will is not offered in evidence as a will requiring no proof to sustain it, but as a writing claimed to be the last will; and, when it is admitted in evidence, it devolves on the proponent to make prima facie proof that it is the last will of the person whose will it is claimed to be. That the writing claimed to be the last will of Mary Brady shall be in evidence is indispensable to the inquiry whether or not it is in fact her last will, and unless it is in evidence, the jury can not render a valid verdict in regard to it. It was, therefore, reversible error to instruct the jury to render a \rerdict that the paper “ offered,” ■which was claimed to be Mary Brady’s last will, but which was not in evidence, was not her last will. But if the word “ produced,” in section 7, should be construed as the court practically, at least, construed it, in giving the instruction, namely, as meaning merely produced in court, without being put in evidence, this would not avail appellee, because the writing purporting to be Mary Brady’s last will was not only produced in court, but was offered in evidence, and we have shown that there was evidence tending to prove that the writing was her last will and testament. The evidence, as we think, would have fully warranted the jury in finding for the proponent, had the writing been admitted in evidence. Thus, whatever construction is adopted, the giving of the • instruction was error which necessitates reversal of the decree.
When appellant’s counsel offered to read the testimony of the witnesses to the will, given in the Probate Court, the court ruled that all the testimony, including that of Shannon, witness for the contestants, must be read, or none, and appellant’s counsel was compelled to read Shannon’s testimony as a condition of reading the testimony of the subscribing witnesses to the will. Mo exception was preserved to this ruling, but as there must be a new trial of the cause, if not abandoned by appellee, we think it proper to consider the ruling. We think the ruling was erroneous. All that the proponent of the will was bound to do, was to make a prima facie case, and this only required the reading of the testimony of the subscribing witnesses to the will, and putting the will in evidence. Graybeal v. Gardner, 146 Ill. 337, 343, and cases cited. He was not bound to read the testimony of Shannon, and thus, apparently, make Shannon his own witness, as appellee’s counsel claim he did. After the reading by appellant’s counsel of the testimony of Kaske and Hare, it would have been competent for the opposing counsel to read the testimony of Shannon, which, if he had done, the testimony of Dora Hayes, in rebuttal, might have been read by appellant’s counsel. Kaske and Dora Hayes were called as witnesses by appellant’s counsel, and the court, on objection, refused to permit them to testify, to which ruling appellant’s counsel excepted. Kaske was one of the subscribing witnesses to the will, and both his testimony and that of Dora Hayes, before the Probate Court, had been read in evidence. Motwithstanding this, they were competent witnesses, and counsel had a right to call and examine them, No reason for their exclusion appears from the record, and we can conceive of no valid reason. A subscribing witness may be called on a contest of the will in chancery, notwithstanding his testimony given in the Probate Court has been read in evidence. In Rigg v. Wilton, supra, the court say of the subscribing witness to the will:
“ The party sustaining the will is not bound to call them, although a failure to do so, unexplained, might be regarded as a suspicious circumstance.”
In Harp v. Parr, 168 Ill. 459, 477, one of the subscribing witnesses to the-will, whose testimony given in the Probate Court had been read in evidence, was called and testified as a witness; and in Baker v. Baker, 202 Ill. 595, 613-616, the testimony of the subscribing witness in the Probate Court was admitted in evidence, after they had testified in person in the cause, and the Supreme Court held that there was no error in this ruling of the trial court. The fact that Dora Hayes testified in the Probate Court, in rebuttal of the testimony of Shannon, did not render her incompetent as a witness on the trial, and, as previously stated, we perceive no valid reason for excluding her as a witness. Counsel for appellee object that it is not certified that the certificate of evidence contains all the evidence. We think it apparent from the record that all the evidence is contained in the certificate, and this is sufficient. Marine Bank of Chicago v. Rushmore, 28 Ill. 443.
However, the objection, if well taken, would not affect our decision, in view of the grounds on which it is based.
The decree will be reversed and the cause remanded, appellant to recover his costs of this court.