*578The petition asking to have the will of Mary Jane Whitaker admitted to probate was filed in the district court of Box Elder county. Objections to the probate were interposed, alleging that the deceased at the time of the execution of the purported will was not of sound and disposing mind and memory and was acting under undue influence.

A jury was impaneled to try the issues thus formed. The proponents called two subscribing witnesses to the will and by them proved its due execution. No evidence was offered to prove the mental capacity of the deceased, nor to prove the absence of undue influence at the time of the execution of the will. Without further evidence the will was admitted in evidence, and the proponents rested. Contestants rested, without offering any evidence. The court then discharged the jury and admitted the will to probate. Contestants appeal from that order.

The question for decision is: When a will is offered for probate, whether there is a contest or not, must the proponents or petitioners offer some evidence of the mental capacity of the testator at the time of the execution of the will, and whether the proponents must also offer evidence to show the absence of fraud and undue influence, in order to make out a prima facie case for admitting the will to probate ? The question has been heretofore answered in the affirmative by this court. It is said In re Hanson’s Will, 50 Utah, 207, 167 Pac. 256:

“ * * * Unless these matters are admitted by the protestant, it is the duty of the proponent to produce his proof respecting the mental capacity of the testator at the time of the execution of the will and the due execution thereof. As to these preliminary matters the burden of proof is, as a matter of course, upon the proponent; that is, he is hound to make out a prima facie case.”

See, also, In re Swan’s Estate, 51 Utah, 410, 170 Pac. 452.

The proponents not having made out a prima facie case, the court erred in admitting the will to probate.

Protestants insist that, as the proponents failed to make out a prima facie case, the district 'court should be directed to refuse to admit the will to probate. This is a law case (In re Hanson’s Will, supra), in which the con*579testants *578*579are entitled to the new trial for wbicb they made motion in the district court. It is clearly onr duty to reverse tbe judgment or order admitting the will to probate and to direct a new trial herein.

It is so ordered. Proponents to be taxed with costs on appeal.