Bruce et al. vs. Benedict. existence of all the necessary facts to constitute a valid exemption. But, should this matter of exemption be treated as surplusage, then, in another paragraph, the answer sets up affirmatively that judgment was rendered against the plaintiff, in a court of competent jurisdiction, upon which execution issued, directed to defendant, Maupin as constable, in obedience to which he levied upon the property of defendant in execution, the plaintiff in this suit, so that, whether considered in one or the other form, the defendants had fully answered. The remaining paragraph of the answer was clearly defective; a denial that the property was unlawfully damaged $160; admitting the possession of the property in the defendant, and a general statement that the property was not exempt from execution, was wholly insufficient, and if a separate demurrer to that paragraph had been filed, the demurrer should have been sustained, unless, by reason of the defects in the petition, by relation, judgment should have been rendered against the party committing the first error in the pleading. But the demurrer is general, and applies to all of the paragraphs. If any one of them is sufficient, the demurrer should have been overruled. The pleader must stand upon his general proposition, and the court must pass upon it as an entirety, and cannot overrule the demurrer, as to one, and sustain it as to another. Archer v. National Insurance Company, 2 Bush., 226. If we decide that the demurrer should have been sustained to the answer, which we cannot do, then we must sustain an insufficient petition, and overrule a good defense to it, even when made perfect. Under this state of case, as the plaintiff committed the first error, we think judgment should be rendered upon demurrer to Vol. XXXI.-20. Jenkins et al. vs. Tobin et al. the sufficiency of the petition. Bradley v. Hume, 18 Ark., 294; Pettus v. Harris, 11 Ark. Because, should we overrule the demurrer under the state of pleadings presented, the plaintiff could not avail herself of her right of exemption without an amendment of her petition. In consideration of all which, the judgment of the court below must be reversed and set aside, and the cause remanded, with leave to the plaintiff to amend her petition, so as to omit all matters in reference to the levy of the execution, and exemption of the property, to which the defendants may answer, and if the plaintiff, in fact, is entitled to an exemption of the property, she may avail herself of the benefit of it by proper evidence upon the trial. JENKINS et al. vs. TOBIN et al. 1. DEPOSITION: Authentication, etc. Where depositions are taken before a justice of the peace in another State a certificate of authentication of his official character should accompany the deposition. 2. EVIDENCE: Burden of proof under issue of devisavit vel non. Under the issue of devisavit vel non, where the inquiry is whether the testator was of sound and disposing mind, and free from undue influence, at the time of executing the will, the burden of proof is on the plaintiff. 3. DEVISAVIT VEL NON: Evidence, etc. An instruction to the following effect held correct under an issue of devisavit vel non: Evidence that the testator was weak and imbecile from age and disease to the extent that he was incapable of attending to his ordinary business, and in that condition was induced to abandon attorneys previously employed by him, that the will was written by the attorney of the principal devisee, and witnessed by said attorney, and the wife, and a relative of said devisee when other disinterested parties were near and could have been conveniently called to witness it, may be considered by the jury in determining whether the will was obtained by undue influence or not. An instruction under an issue of devisavit vel non which coupled together a number of circumstances having a bearing on the capacity of the testator at the time of making the will, and announced that they were all strong circumstances to disprove capacity, was erroneous; the circumstances being admitted, their weight should have been left to the jury. (For various circumstances admissible under the issue of devisavit vel non, as bearing upon the capacity and freedom of will of a testator, see the opinion.) APPEAL from Desha Circuit Court. Hon. L. A. PINDALL, Special Judge. WALKER, J.: This case was brought before us upon appeal, and was decided at the November term, 1874, reported in 29 vol. Ark. Rep., p. 151. By reference to the decision then made, the facts will be found fully set forth, and several of the questions now presented for consideration settled. The judgment of the court was set aside and the cause remanded to be tried anew. There was a change of venue from Jefferson to Desha County, where a trial was had and a verdict rendered in favor of the plaintiffs, upon which judgment was rendered in their favor; defendants moved for a new trial, which was overruled, exceptions taken, and the case again brought before us for consideration. It is first objected that the court erred in overruling defendants' motion to dismiss the suit for want of jurisdiction. Suit was brought in the Circuit Court on the 21st of July, 1871, after the Code practice went into effect, under which the remedy was by appeal from the judgment of the Probate Court, before which the will was probated. The prayer of the petition was, that an issue be formed to be tried by a jury, as to whether the instrument probated, was or Jenkins et al. vs. Tobin et al. not the will of Nathan Jenkins; the will was probated on the 6th November, 1868, at which time the right to proceed by petition to test the validity of the will was given, and although the petition was filed after the Code practice was declared to be in force, suit was brought within the time given by the statute after the will was probated, to file such petition. Numerous authorities have been cited by appellant's counsel to show that, after the Code practice went in force, the Circuit Court had jurisdiction no longer by petition, but we need not consider them, because the same question was heretofore presented and disposed of when the case was submitted for our consideration, at the November term, 1874, and for that reason was properly overruled by the court below. The second ground of objection is, that the court erred in suppressing the deposition of Laura B. Cooper. The deposition was taken before a justice of the peace, in the State of Pennsylvania, and was suppressed because there was no certificate of authentication, showing that the person who took the deposition and styled himself justice of the peace, was in fact such. Defendant's counsel concede that the objection would be good but for an agreement by counsel, under which the deposition was taken. It seems to have been agreed by the counsel on both sides that depositions might be taken between certain hours at a day and place therein named without a commission, before any officer qualified by law to take the same, reserving all questions of relevancy and competency. Defendants' counsel contend that, as the relevancy and competency of the evidence was alone reserved, all other irregularities were waived. Such, we think, was not the effect of the agreement. The necessity of taking the depositions by commission was waived, and time, place and a qualified officer were agreed upon, but certainly it could not have been intended by the parties, that proof Jenkins et al. vs. Tobin et al. of the qualification of the officer who took the deposition, should be dispensed with. The depositions were to be taken before one qualified by law to take them; the fact that he subscribed himself an officer was no evidence that he was such, and because there was no certificate showing that he was an officer, the depositions were properly suppressed. The third exception taken by the appellant was the giving of the following instruction by the court in lieu of the plaintiff's first instruction: "A devise is the direction of a testator of sound mind as to the disposition of his property after his death, and before a will can be established upon an issue of devisavit vel non, it must be made to appear to the satisfaction of a jury that the testator was twenty-one years old and of sound mind; these facts must be established to the satisfaction of the jury from the proofs in the case by the party seeking to establish the will unless it sufficiently appears from the evidence by the plaintiffs." This instruction was clearly erroneous; whatever may have been the decision of other courts, this court has so repeatedly held that a party who seeks to set aside a will which has once been established in the Probate Court, upon an allegation that from mental incapacity or from other sufficient cause, the will is invalid, assumes the affirmative, and is entitled to conclude the argument before the jury, leaves it no longer an open question. Rogers v. Diamond, 13 Ark., 479; McDaniel v. Crosby et al., 19 Ark., 533, and in our former decision on this case, 29 Ark., 151. The questions at issue were narrowed to an inquiry as to whether the testator was or not of sound and disposing mind and memory, and free from influence at the time he executed the will; questions which the plaintiff assumed to prove, and which the court, by its instructions, wrongfully imposed upon the defendant. If the burden of proof devolved upon the defendants, as held by the court, then certainly they were entitled to conclude the |