By the Court

delivering the opinion.

There is one ground on which we think a new trial ought to have been "granted in this case: the failure of the judge to charge as requested, that where, as in this case, the will is prepared by one who takes a large benefit under it, the will cannot be set up without strong proof that the testator understood its provisions and assented to them. That this charge as asked is sound law, and that it was applicable to the case are propositions not disputed in the argument. The real controversy touching this point, was as to the proper con*105struction of the bill of exceptions. The bill of exceptions states that the charge was asked and was not given. A note to it adds that the Court recognized it as law, and after concluding his general charge, inquired of counsel whether there were any other points on which they desired a charge, and that they replied there were none. This note does not vary the original statement that the charge was asked and was not given. It does say that the Court recognized it as law, but it does not say that he charged it as law. The Court’s recognition of law becomes a guide for the jury when expressed to them, and not before. Then the charge was not given. Was it waived? The exact truth of the case is, that it was not waived, but forgotten by the judge and by the counsel. If the Judge had thought of it, he would have given it, for he recognized it as law. If counsel had thought of it, they would have suggested it, when requested to suggest any other points not covered by the general charge, for their case turned on it. Our conclusion is, that the case was submitted to the jury without any instruction upon the main point in it, by an unintentional omission of the Judge; the omission committed by him, and not corrected by the counsel, because they happened to slip into a like momentary trick of the memory. The case was not tried on its merits. The failure, if the fault of anybody, was as much the fault of the Judge as of the counsel; and we think he ought to have granted a new trial on account of it. There is no need to express any opinion upon the other grounds of error, for they involve no general principle, and cannot recur upon the new hearing. As to the point upon the weight of evidence, we will remark, that in our judgment, the evidence was such as not to authorize the Court to set aside a verdict which might have been found either way, if the case had been legally and fully submitted to the jury.

Judgment reversed.