The facts are stated in the opinion of the court, delivered by

One of the points made by the appellant is, that the evidence is so imperfect, irregular, and incorrect, that it is impossible the court can do justice between the parties as it now stands.

The appellee has also filed as a point in the cause, that the record has been brought up in so defective a condition, that the court cannot investigate the merits with any hope of doing justice between the parties; but, he contends, the cost of remanding should be borne by the appellant, as it was her fault the record was not made out correctly.

The usual practice is to make the appellee pay costs on the reversal of a judgment; but where the remanding is owing to the manner the cause is brought before us, we think a case is presented which should be an exception to the general rule. The appeal was taken for the benefit of the appellant, and it was her duty to have placed the record before us in such a shape that the merits could be investigated.

It is, therefore, ordered, adjudged, and decreed, that the judgement of the Probate Court be annulled and reversed, and that the cause be remanded for a new trial, the appellant paying the costs of appeal.