¶1delivered the opinion of the court.
¶2A careful examination of this record convinces us that two things happened on the trial of the issue devisavit vel non, i. e.: (a) .The proponents were not adequately represented at the trial; (b) there was sufficient evidence before the jury to warrant a finding in favor of the will. The probate of the will by the clerk was alone prima facie *496evidence of the validity of the will, and this, together with the other evidence, should have been submitted to the jury, Code 1906, section 1999. We think that the instrument had many earmarks of-a will, indeed, we are of opinion that the language of the instrument pretty clearly indicates that the signers intended to make a will. Of course, the objectors were entitled to whatever advantage the skill of their counsel gave them, but when the court undertakes to represent the proponents, as was done in this case, it seems to us that he should have seen to it that •the formal evidence, the probate proceedings, were introduced in evidence. It is not entirely clear how much, if any, of the proceedings went to the jury. Counsel for the objectors insist that only the testimony of the witnesses delivered orally, and taken down by the stenographer, should be considered on this appeal. The entire probate proceedings are in this record, and should have been submitted to the jury.
¶3Inasmuch as courts are organized to try controversies on their merits, and because, if appellees are to be believed, this case was not so tried, we will reverse this cause and remand for a trial de novo of the issue dewsavit vel non.
¶4Reversed and remanded.