This is a proceeding on the contest of a will before its probate, under our statute. There was a jury trial in the court below, and a verdict in favor of the will offered for probate, and a judgment of ■ the court allowing the probate of the instrument offered, according to the verdict.
The evidence tends to show that there were two wills made by the decedent, Wm. M. Bell. The one was made
On this evidence the court gave several charges to the jury which were excepted to by the contestants, and refused to give several others which were asked by the contestants, and the refusals were each made the basis of an exception. It is not necessary to notice the exceptions arising on the charges given, as like questions arise on the
“ The contestants asked the court to charge the jury in writing, that the testator could not republish the will propounded by parol declarations alone.”
This charge should have been given. To refuse it was error.
The Code is intended to contain all the statute law of this State of “ a public nature, designed to operate upon all the people of the State up to the date of its adoption, unless otherwise directed in the Code.” — Code, § 10. This law is not merely cumulative of the common law, and made to perfect the deficiencies of that system, but it is designed to create a new and independent system, applicable to our own institutions and government. — Rev.'Code, § 10. In such case, where a statute disposes of the whole subject of legislation, it is the only law. Otherwise, we shall have two systems, where one was intended to operate, and the statute becomes the law only so far as a party may choose to follow it. Besides, the mere fact that a statute is made, shows that so far as it goes, the legislature intended to displace the old rule by a new one. On some ^questions the common law conflicts more or less with our constitutional law, and is necessarily repealed and displaced and repealed by it. And on others it has, by lapse of ages, and mistakes inevitably attendant on all human affairs, become uncertain and difficult to reconcile with the principles of justice. Hence, the legislature intervenes to remove such difficulties, uncertainties and mistakes, by a new law. This new law, to the extent that it goes, necessarily takes the place of all others. For it would be illogical to contend that the old rule must stand, as well as the new one, because this would not remedy the evil sought to be removed and avoided.
Judged upon these principles, the statute law found in the Code, and such others as may have been since enacted on the subject of wills, in this State, include the whole law upon the making of wills, and their revocation, and the making of other wills in the place of those revoked. — Rev.
In all matters in relation to the evidence and mode of proceeding in the court of probate on the contest of a will, where there is no special exception, the court must proceed and be governed by the same rules and regulations as courts of common law. — Rev. Code, § 1962. In such a contest, the legatees are competent witnesses for the proponent, or for the contestant. — Rev. Code, § 2704; Pamph. Acts 1866-7, p. 335, No. 403. The court did not err in permitting one of the legatees to testify in favor of the validity of the will.
The conduct of the trial is under the sound discretion of the court. The court may therefore allow a witness to be called back for re-examination, but can not compel either party to call back his witness, unless he choose to do so. In case a witness is so called back after being dismissed by the party who summoned him, he becomes the witness of the party calling him back against the objection of the other party; and such witness can not be impeached by the party so calling him back. In this view of the law the contestants were not injured, as the testimony strengthened their case.
The other exceptions are such as are not likely again to arise on a new trial. I therefore omit their consideration.
The judgment of the court below is reversed, and as the parties are entitled to a trial by jury, (Rev. Code, § 1956,) the cause is remanded and a new trial is ordered.