(after stating the facts). On the trial, the findings of the jury upon the issues submitted to them, were made to turn upon the question, whether or not a particular part of land described in the complaint, and designated as the “ Ball Tract,” constituted a part of the testator’s "home place,” devised by the ninth clause of his will to his son William, who was the ancestor of the plaintiffs. Evidence was introduced on the part of the plaintiffs, tending to prove that it did, and on the part of the defendants to prove the reverse.
On the cross-examination of a witness for the plaintiffs, he was asked, “if at the time he, Joseph Waggoner, (the testator,) made this will, he had not placed his other sons in possession of valuable tracts of land, formerly belonging to him.”
This question and any answer to it were objected to by the defendants, and the objection was sustained by the Court. This is assigned as error. Any answer to this question, so far as we can see, could have no material bearing upon the issues submitted to the jury, or upon the material question, which both parties conceded must control the findings of the jury upon *327them. Neither an affirmative nor a negative answer to it would tend to prove that the “Ball tract” was or was not part of the testator’s “ home place,” and could not therefore be material. Apparently, the question was intended to elicit immaterial evidence. If in any possi ble view of the matter at issue, the excluded evidence could be pertinent and material, it should have been made so to appear, to the end the Court could pass upon its competency. The burden was on the defendants to show its relevancy and materiality, and this should appear in the assignment of error.
It was insisted in the argument by the counsel of the appellants, that the evidence was competent to show the condition and circumstances of the testator’s family at the time he executed his will. In some possible cases, where the will is to be construed, such evidence might be competent, but no question arose on the trial as to the proper interpretation of the testator’s will. The question was, whether or not a particular clause of it embodied the land in question. There is no question as to the testator’s purpose — that is plain — -he devised, and intended to devise, to his son named, his “ home place.” This in nowise depended, so far as appears, upon what he had given his other sons, whether by deed or will. The difficulty arises, not in ascertaining the meaning of the will, but in identifying the land in question as part of the “ home place,” fitting it to the description in the will.
The evidence embraced by the second exception seems to have been unimportant. It tended s'ightly to identify the “home place,” and may have borne upon the issue as to damages. It does not appear that it was incompetent. If, however, it were not strictly so, it did not of itself tend to injure or prejudice the appellants, nor does it appear that it did so. The admission of immaterial evidence that does not tend to injure the appellants is not ground for a new trial, unless it appears that it did, or probably did so. It is because the complaining party has suffered, or probably has suffered, wrong, by reason of the error of *328the Court, that he is entitled to have his case retried. It- is not every harmless slip or mistake that offers him such right.
The law docs not temporize or trifle with parties. It seriously intends that every person shall have substantial justice administered to him and for his benefit, and that he shall have fair legal opportunity to obtain it. Generally, what is inconsiderately conceded to one party, is to the prejudice of another party.
There is no error, and the judgment must be affirmed.
No error. Affirmed.