majority">Smith, Justice,

delivered the opinion of the Court:

Two grounds of exception have been taken by the appellant in this cause : First, as to the mode in which the appeal from the judge of probate has been proceeded on and adjudicated ; and, Secondly, as to the instructions, and the principles embraced in them, applicable to the evidence, as laid down by the judge.

On the first point, the appellant does not complain of the order directing the trial of the cause upon the transcript of the judge of probate, and the appellant’s bill of exceptions, but of that portion of the order which directed the empannelling of a jury, and the exclusion of all other evidence in relation to the sanity of the testator, except the subscribing witnesses to the will, who might be sworn and testify; and .that as to all other decisions of the Court of Probate, appearing from the bill of exceptions and transcript, the trial should be de novo; and the parties not restricted in that respect, to the evidence adduced before the judge of probate.

We do not perceive that this order in the Circuit Court was erroneous. The 135th section of the “ /let relative to Wills and Testaments," (1) provides that the Circuit Court, in cases of appeal from the Court of Probate, shall proceed de novo, as to the judgment and orders appealed from ; and that claims for debts may be tried by a jury as in other cases. It would be difficult to understand the meaning of the language here used, did we not consider the terms as implying a new and original hearing of the cause, in the Circuit Court. How shall it proceed de novo as to the judgments and orders appealed from, if it does not permit a new hearing of the cause upon its merits ? If this be true, how can a rehearing on the merits be had, unless the forms of proceeding, used in the Circuit Court, in the trial of other cases, be adopted ? A proceeding de novo surely implies a new hearing on the facts, and law of the case; and not a mere review, and decision upon the facts and decisions as they transpired, and were had before the Probate Court. The phraseology used in the bill of exceptions, that the trial, as to all other decisions, should be de novo, seems to imply, that in regard to the question of the sanity of the testator, the trial was not de novo. This is conceived to be rather a misapprehension of the state of the proceedings had, and the use of an ambiguous phrase, which the proceedings as they appear sufficiently explain. The rehearing of the evidence, and the verdict of the jury were surely a proceeding de novo, on the intrinsic merits of the controversy. The insanity of the testator was the question before the judge of probate, but still it is again retried, and the facts reexamined, and original testimony introduced before the jury, — not what remained on paper before the judge of probate. We conceive, then, that as the Circuit Court is not bound to find the facts, but to pronounce the law arising on the facts judicially proven, it had an undoubted right to direct the empannelling of a jury to find those facts on which its judgment was to be given. The phrase in the act, “ that claims for debts may be tried by a jury as in other cases,” cannot be considered a negation of the right to empannel a jury in other cases than claims for debts. It is an affirmance of the right in that particular case, but is no prohibition to the adoption of similar proceedings in other cases. The further decision that the subscribing witnesses should alone be permitted to testify to the mental condition of the testator, was certainly proper.

It will be recollected that the object of the proceedings before the judge of probate, and the re-trial in the Circuit Court, was to obtain probate of the will. Two witnesses to the will are required to prove that they were present and saw the testator sign the will, or acknowledge the same to be his act and deed; and that they believed the testator, at the time of signing or acknowledging the same, to be of sound mind and memory. Unless this be done, no probate can be granted. Hence it is most manifest that no other witnesses could be introduced to establish what the law requires shall be alone proven by the subscribing witnesses. The decision to exclude all other evidence of the proof of the execution of the will, and state of mind of the testator, was strictly correct.

On the second ground it satisfactorily appears, that there- was no error in the instructions given. The Court in saying that the concurrence of two of the subscribing witnesses in the sanity of the testator, at the time of the execution of the will, was necessary to establish its validity, did but declare what the law says shall be the only evidence in such cases. No error is perceived in the further instructions of the jpdge in determining that the subscribing witnesses, in testifying as to the mental condition of the testator, at the time of the execution of the will, might found their belief as well upon events which transpired antecedently to the execution of the will, as those which happened at its execution. Whether the testator had been previously subject to aberrations of mind or not, to their knowledge, would surely be a means of testing, in some measure, the accuracy of their judgment, as to his condition of mind at the time of the execution of the will. The facts might be ancillary to the formation of an accurate judgment, and materially aid a just conclusion.

We are therefore of the opinion that the judgment of the Circuit Court should be affirmed with costs.

Judgment affirmed.

Note. Decisions as to construction of statutes: See note to Mason v. Finch, Ante 223.

R. L. 653 ; Gale’s Stat. 718.

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