Ex Parte Jackson

¶1I concur. While the exact question raised in this appeal does not seem to have been expressly decided, courts and practitioners have heretofore generally assumed the law to be as announced in the opinion of the Chief Justice. The original act of 1839, on the subject of appeals from probate court, in which the question of will or no will was involved, contained the words, "shall be tried anew," which, of course, authorized a trial *61de novo. These words have been omitted in subsequent legislation, which is now embodied in sec. 2493, Civil Code, 1902, which provides: "In all trials upon appeal from the probate court, in which the question of will or no will is in issue, the executor or party propounding the will shall be admitted to open the case and reply in evidence and argument." No matter what the decision of the probate court is on appeal, the proponent of the will is still the actor, with right to open and reply in evidence and argument. This is wholly inconsistent with ordinary appeals based upon the record below, wherein the appellant is the actor and the appeal heard upon the record below, and can only be construed as authorizing a trial de novo.