Small v. McCalley

BRICKELL, J. The several assignments of error, founded on the paper transcribed in the record, purporting to be a bill of exceptions, cannot be considered. The judge of probate refused to sign that paper, and certifies that he refused because it does not truly recite the facts occurring on the trial, or the rulings of the court. No application has been made to establish it as a bill of exceptions. Not being signed by the judge, or established in the mode prescribed by the statute, it does not form part of the record, and errors cannot be assigned on its statements. 2. The remaining assignments of error relate to the action of the court in striking out a demurrer to the application of the appellee for the probate of the will. An application for the probate óf a will may be made verbally, or in writing. It has often been said by this court, that it was the better practice to require it to be made in writing. The requisition, however, is matter of discretion, in the court of probate, which we cannot control. If the court deems the application sufficient to call into exercise its jurisdiction to take probate, the only power this court has is to correct any error or irregularity, which may intervene in its exercise. Whether the application is verbal or written, and however insufficient it may be, if tested by the rules applied to pleading, the proponent is bound, on the hearing, to make proof of every fact essential to the validity of the instrument propounded, and of every fact on which the jurisdiction to take probate depends; so that the character of the application is unimportant, and cannot possibly prejudice the interests adverse to the will. The action which the court would take on the appellant’s demurrer, was- a matter resting within its discretion, and the exercise of that discretion we cannot revise. The decree is affirmed.