¶1delivered the opinion of the court.
¶2We think there was error in admitting oral testimony without an agreement “in writing” that it might be offered, or a “notice to that effect” filed in the cause. We had occasion to *770carefully examine Code 1892, sec. 1764, in Dickerson v. Askew, Ante, 436; s. c., 34 South., 157, in the light of the history of the law previous and subsequent to the Constitution of 1869, and held in that case that the section was restrictive, and not enlarging, so far as notice or agreement is concerned, and that notice or agreement in writing is now necessary even in matters which would have been of probate court jurisdiction under the law existing before that constitution. Objection to the oral evidence was promptly made when offered, and exception taken to its being overruled.
¶3Reversed and remanded.