¶1I concur. But in addition to the grounds for reversal so cogently stated by Mr. Justice Woodward in his opinion, I desire to call attention to another serious error of the trial court, that it may be avoided upon the new trial which must be had. The statute provides that upon the trial of the issues arising in an action of this character, “the decree of the surrogate admitting the will or codicil to probate shall be prima facie evidence of the due attestation, execution and validity of such will or codicil.” (Code Civ. Proc. § 2.653a.) The phrase “ prima facie ” is used in two senses, one where the party “ having .the burden of proving the issue (i. e,, the risk of non-persuasion of the jury), has not only removed by sufficient evidence the duty of producing evidence to get past- the judge to the jury, but has gone further, and, either by means of a presumption or by a general mass of strong evidence has entitled himself to a ruling that the opponent should fail if he does nothing more in the way of producing evidence,” or to put it in another way, ‘c Are there facts in evidence which if unanswered would justify men of ordinary reason and fairness in affirming the question which the plaintiff ” (or proponent) “ is bound to maintain ? ” (4 Wigm. Ev. § 2494.) The other sense in which the words are used relates to a situation where the proponent has introduced sufficient evidence to require the judge to submit the question to the jury. But the proponent “still has his burden of proof in the sense of the risk of non-persuasion of the jury, i. e., should the jury be indoubt "… either with or without evidence from the opponent, the proponent fails to obtain their verdict upon that issue, and the opponent remains successful.” (Id. §§ 2487b, 2494.) That the words were used in the statute in the former sense is- clear. “ The party sustaining the will shall be entitled to open and close the evidence and argument. He shall offer the will in (sic) probate and rest. The other party shall then offer his evidence. The party sustaining the will shall then offer his other evidence.” (Code Civ. Proc. § 2653a.) When the party sustaining the will shall have offered the will and the decree of probate and rested, as the statute compels him to do, if. no other testimony is introduced what of necessity must follow ? A verdict from the jury in his favor. *677The will and the decree, which is the only evidence which proponent is permitted to offer in the first instance, is not only sufficient to require the judge to submit the question to the jury, but it is sufficient unanswered to require .the jury to be persuaded thereof. It was, therefore, error to instruct the jury, as was done, “ the probate of it, what the Surrogate did, do not allow it to have a feather’s weight in your minds as evidence bearing upon that inquiry,” viz., “the due attestation, execution and validity of such will.” That this instruction was not inadvertent is apparent from the fact that in substance it was repeated several times in the course of the trial. The jury were told that, the decree of the surrogate “has no probative force.” “ It [the surrogate’s decree] has nothing to do with it. You must dismiss from your memory and consideration absolutely, the fact that anybody has passed on this will before.” Doubtless, after the opponents to the will had introduced their evidence, the decree of the surrogate was not conclusive. But the instruction of the learned trial court compelled the jury to disregard the express provisions of the statute respecting a subject which was within the legislative province. (1 Wigm. Ev. § 7; 2 id. § 1354, subd. 3.)
¶2Carr, Woodward and Rich, JJ., concurred.
¶3Judgment and orders reversed, and new trial granted, costs to abide the event.