After careful consideration of the petition herein the Court is satisfied that no material question of law or of fact has been either overlooked or disregarded.

It is, therefore, ordered that the petition be dismissed and that the order heretofore granted staying the remittitur be revoked.

The opinion in this case was filed September 4th, but remittitur held up on petition for rehearing until

The opinion of the Court was de-

livered by

This case was commenced in the court of probate, where it was adjudged that the will in dispute was genuine and not a forgery.

There was an appeal to the Circuit Court, which sustained the will and dismissed the appeal, whereupon the defendants appealed to this Court.

While the exceptions are numerous, the appellants’ attorneys have grouped them under three heads, which present all the questions involved.

The first of these is: “That the Circuit Judge erred, in refusing to pass upon the objections, noted to portions of the testimony, as taken before the probate court.”

1 The order out of which this question arose was as follows : “Attorneys for both parties in the above entitied case agreeing: It is ordered, that the said case be tried by this Court, on the testimony taken by the probate judge herein.” All the testimony introduced before the probate judge, was not reduced to writing, and the said order could not have been carried into effect, if his Honor, the Circuit Judge, was compelled to pass upon the objections to the testimony, taken by the probate judge. This fact and others mentioned by the Circuit Judge, induced him to reach *42 the conclusion that the right to insist upon said objections was waived, and this finding is fully sustained by the testimony.

2 The next assignment is, that his Honor, the Circuit Judge, erred: “In holding and deciding, that the alleged will was genuine — the overwhelming weight of the proof showing that it was a forgery, and, as such, null and void.”

The cases of Myers v. O’Hanlon, 12 Rich. Eq., 196, and In re Solomons’ Estate, 74 S. C., 189, 53 S. E., 170, are conclusive of this question, as they show that the issue of will or no will, both as to real and personal property, is legal in its nature, and therefore not reviewable by this Court.

3 The last question presented is: “That the Circuit Judge was in error in holding and deciding, that the law placed the burden upon the appellants, to prove that the alleged will was fraudulent and a forgery.”

After discussing, somewhat at length, the presumption in favor of the validity of a will, the presiding Judge concluded as follows: “However this may be, the law properly places the burden of proving fraud upon those who charge it; respondents here charge fraud and forgery against the will; they must satisfy the Court of it, by something more than mere romance and suspicion.” The principle that the burden is upon the party alleging the validity of the will, is so well settled, as to render citation of authority unnecessary.

On the other hand, it is also true as a general rule, that he who alleges fraud takes upon himself the burden of proving it. The effect, however, of alleging the fraud, did not shift the burden of proof from the petitioners, as to the validity of the will, but to enable the defendants to introduce testimony as to those matters, concerning which they might otherwise have been precluded. In other words, the defendants were not required to establish the allegations of fraud, until the petitioners made out a prima facie case, showing *43 that there was a compliance with the requirements of law, in the execution of the will. The ruling of the Circuit Judge deprived the defendants of the right to rely upon the fact that the petitioners had not made out, in the first instance, a prima facie case.

If this was a case in chancery, the Court would have the power to determine the facts, and grant relief even when there was an erroneous ruling upon a question of law. But as the issue is of a legal nature, and there was an erroneous ruling upon a question involving a substantial right, the appeal must be sustained.

The foregoing are the views of two members of the Court, but as the other two members are of the opinion that there was no reversible error the judgment of the Circuit Court is affirmed.