Will of Silverthorn. son, each of whom bore his name. They were evidently his favorites. No other persons seemed to stand so near to him as these persons above mentioned, and to them (and a favorite niece), in different proportions, he gave his property. To gather and hold these elements in his mind, to comprehend their relations to each other, and to form a rational judgment based upon them, would not seem to require any great mental power or effort. A man of very moderate intellectual ability would be equal to such a task. We are satisfied from the evidence that during the intervals between the periods of sickness and prostration above mentioned the testator was usually competent to make a valid testamentary disposition of his property; that during one of these intervals he gave directions for drawing the will in question, and executed the same; and that he sufficiently understood the nature and effect of what he was doing. Such, we think, must have been the views of the circuit judge, although not as fully expressed in the findings as might be desirable. We understand the condition of the testator described in the fourth, fifth, and sixth findings of fact relates only to his periods of sickness and prostration, and that described in the eleventh finding to the lucid intervals between, including that during which the will was executed. This view makes the findings consistent with each other, and in accord with the fair preponderance of the evidence. 2. On the trial the proponent, Levi J. Silverthorn, who is one of the devisees named in the will, was permitted, against objection, to testify to conversations and transac tions with the testator in his life-time. We are inclined to think the testimony was incompetent under sec. 4069, R. S., and have acted upon that impression by excluding from our consideration the testimony objected to. We do not, however, determine the question of the admissibility of such testimony in like cases. Will of Silverthorn. 3. In the argument of the cause in this court there was some debate as to which party is charged with the burden. of proof when probate of a will is contested because of the alleged mental unsoundness or insanity of the testator. It was said that a remark in the opinion prepared by the writer in the case of Will of Cole, 49 Wis. 179, has led some members of the bar to maintain that, when a will is presented for probate, no affirmative proof of the mental soundness or sanity of the testator is required, but that the presumption of sanity asserted in that case is sufficient. We were somewhat pressed by one of the learned counsel to make a further deliverance on that subject. This question of the onus probandi in such cases does not necessarily arise on this appeal, for we think the findings of fact are sustained by a preponderance of proof. Hence the question will not be here determined. Under the circumstances, however, the writer will be pardoned for expressing the opinion, on his own responsibility and without consultation with his brethren, that the statute (sec. 3788, R. S.) requires affirmative proof to be made of the mental soundness of the testator before the will can be admitted to probate, and that until such affirmative proof is made there is no presumption of sanity; but that, when a prima facie case of sanity is made by the proofs, and some contestant makes an issue as to the sanity of the testator, the presumption of sanity arises, and the burden of proving the testator of unsound mind is upon him who asserts it. Nothing further or different was intended in the Cole Will Case, or fairly to be inferred from the language there used, which is as follows: "However, the legal presumption is in favor of sanity, and, on the issue of sanity or insanity, the burden is upon him who asserts insanity to prove it. Hence, in a doubtful case, unless there appears a preponderance of proof of mental unsoundness, the issue should be found the other way." Duffy vs. Hickey. By the Court. The judgment of the circuit court is affirmed. The taxable costs in this court will be paid out of the estate of the testator. The rule of costs in the circuit and county courts is stated in Will of Smith, 52 Wis. 543. See note to this case in 32 N. W. Rep. 287.— REP. DUFFY, Respondent, vs. HICKEY, Appellant. February 8-March 1, 1887. PRACTICE. (1) Change of venue: Motion after reference. (2) Reference: Correcting minutes of evidence: New trial. (3) Order of proof: Discretion. (4) Trial by referee: Improper evidence: Reversal of judgment. (5, 6) Taxation of costs: Remission of excess: Costs on former trial. 1. An application for a change of the place of trial on the ground of prejudice of the judge, made after the cause has been referred and the referee has made his report, is too late. 2. The fact that a referee's minutes of the evidence have been changed is not a ground for setting aside his report and directing a new trial. The remedy is by correction of the minutes. 3. The admission of evidence in reply, which should have been given in opening the case, is a matter in the discretion of the trial court. and if the opposite party has not been injured by its admission out of its proper order the judgment will not be reversed therefor. 4. The admission of improper evidence by a referee is not ground for a reversal if there was sufficient evidence properly admitted to sustain the findings. 5. An error in the taxation of costs, by the allowance of too large a sum, is cured by a remission of the excess before the appeal is taken. 6 Where costs have been taxed on a former trial the amount thereof may be allowed as a single item upon a final taxation in favor of the same party. APPEAL from the County Court of Fond du Lac County. The case is sufficiently stated in the opinion. De W. C. Priest, for the appellant. For the respondent there was a brief by F. F. Duffy Duffy vs. Hickey. attorney, and Duffy & McCrory, of counsel, and oral argument by Mr. F. F. Duffy. TAYLOR, J. This action was tried in the county court of Fond du Lac county. It was an action upon an account for work and labor and for goods sold and delivered. On the part of the defendant a counterclaim was set up. The case was referred to a referee to hear, try, and determine. No question is made upon the order of reference. The referee tried the case, and found in favor of the plaintiff, and directed judgment in his favor for the sum of $208.52, and costs of the action. Upon the filing of the report of the referee the appellant filed an affidavit of prejudice and asked that the cause be removed on account of the prejudice of the county judge. This motion was denied, and exception taken. Exceptions were taken to the report of the referee, and the county court was asked to modify the report in various respects, and also to set aside the report and re-refer the case. All exceptions and objections to the report were overruled by the county court, and the report of the referee was in all things affirmed and judgment entered as directed by the referee. Exceptions were also taken by the appellant to the bill of costs as taxed by the clerk and affirmed by the court on motion to set aside the taxation. After judgment was entered, the defendant appealed therefrom to this court. It is alleged that the court erred in not granting the appellant's motion to change the place of trial on account of the prejudice of the judge. We think the motion came too late, after the cause had been referred and the referee had made his report. This court determined this question. against the appellant in Cairns v. O'Bleness, 40 Wis. 469, 477; Swineford v. Pomeroy, 16 Wis. 553. The learned counsel for the appellant claims that the court erred in refusing to set aside the report and re-refer Duffy vs. Hickey. the action, because he alleges the minutes of the referee in regard to certain evidence had been changed. Had it been satisfactorily shown that the minutes had been changed, it would have been no ground for setting aside the report and ordering a new trial. The remedy in such case would be to correct the minutes of the evidence in accordance with the facts. We think, however, that the appellant failed in showing that the evidence as reported by the referee was not a correct report. The preponderance of the evidence seems to us to be in favor of the minutes of the referee. The learned counsel for the appellant claims that the court should have modified the report by finding that the defendant be allowed $202.35 as a counterclaim against the respondent, which was wholly disallowed by the referee. This was a claim for taking care of some sheep, a horse, and two heifers of the plaintiff while the plaintiff was away from his home and farm. On the part of the respondent it was claimed that the defendant agreed to take care of said stock for one half of the wool of the sheep, and one half of the lambs, and that he was to have the use of the cow for keeping her. Upon this question the evidence was somewhat in conflict; but it is sufficient upon this appeal that it does not appear that the clear preponderance of the evidence is in favor of the claim made by the appellant. The appellant also claims that he ought to have been allowed $50 for the board of the plaintiff for five months, and instead thereof the referee allowed the plaintiff $50 and his board for working for the defendant during said five months. This question was purely a question of fact. The evidence on the part of the plaintiff showed that the plaintiff did work for the defendant five months, and that his work was reasonably worth $10 per month and board. On the part of the defense the evidence tended to show that his labor was worth nothing, that he did not in fact do any work for defendant, and that defendant boarded |