Birdseye's Appeal From Probate

Hamersley, J. The supervision which a judge has over the verdict is an essential part of the jury system, and the power of granting new trials for verdicts against evidence is vested in the trial courts. Bartholomew v. Clark, 1 Conn. 472; Bissell v. Dickerson, 64 id. 61. When error is claimed in the exercise of this power, great weight is due to the ac *625 tion of the trial court, and. every reasonable presumption should be made in favor of its correctness. Loomis v. Per kins, 70 Conn. 444, 446; Howe, v. Raymond, 74 id. 68, 71; Uncas Paper Co. v. Corhin, 75 id. 675, 678. A court has some discretion in the matter of a new trial, but it is a legal discretion. It should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles, or as to justify the suspicion that they or some of them were influenced by prejudice, corruption, or partiality. Burr v. Harty, 75 Conn. 127, 129; Fell v. Hancock Mutual Life Lns. Co., 76 id. 494, 496. When the action of a trial court can reasonably be regarded as within the limits of this discretion, it should not be disturbed upon appeal.. The question of law presented upon appeal from the decision of a trial judge awarding a new trial for verdict against evidence, necessarily involves a consideration of the sufficiency of the evidence, as it appears in the printed record, to support the verdict, making all due allowance for the oftentimes controlling evidential matters appearing in the trial and known to the judge and jury but which do not appear in the report of the evidence; nevertheless, the real question of law is, does it appear that the trial judge has mistaken the law defining the limits of his discretion, or manifestly abused that discretion? Loomis v. Perkins, 70 Conn. 444, 447. The record in the present case fails to show that the trial judge, in granting a new trial, either mistook the limits of his legal discretion or abused the power vested in him. The proponents of the will were bound to prove its legal execution and the testamentary capacity of the testatrix. It appears that the execution of the will was proved beyond question, and also the testamentary capacity of the testatrix. The appellants contesting the will were bound to prove *626 the exertion of undue influence in procuring the will. The persons charged with exerting undue influence did not stand in that relation of confidence to the testatrix which requires a legatee occupying such relation to assume at the outset the burden of proving that his influence did not overcome the free agency of a testator (Dale’s Appeal, 57 Conn. 127. 144), and the rule requiring a person sustaining confidential relations to a testator to assume such burden of proof applies only to a person beneficially interested under the will. Livingston's Appeal, 63 Conn. 68, 78. The only persons by whom any undue influence could have been exerted were Father Nihill — -who was not the spiritual adviser of the testatrix — who had been sent for by her to tell her about a charitable organization with which he was connected but in which he had no pecuniary interest, and who received under the will the legacy of an armchair; Dr. Monahan — named in the will as executor — -who had been called to attend the testatrix during her last illness and had no previous acquaintance with her, and received no legacy ; and Mr. Corr ■ — -the lawyer who drafted the will and had no interest of any kind in the disposition made of her property. These persons were the only ones present immediately before the execution of the will, and were produced as witnesses. They testified fully as to all that took place between them and the testatrix, and the facts as stated by them clearly disproved any undue influence. There was no testimony directly challenging the testatrix’s freedom of action. The testatrix was about eighty years of age ; had lived in Bridgeport fifty years or more, and had accumulated from the savings of her earnings as a domestic servant and work of a similar character property consisting of a piece of land valued at about $1,500, and deposits in savings banks amounting to about $13,000. She had no known relatives, and if she had died intestate her property would have escheated to the State or gone to unknown relatives in Ireland. She had been a member and supporter of the Roman Catholic Church, and according to all the testimony it had been for some time before her death her wish and in *627 tention to give her property to Roman Catholic charities. During her early life she had been for some years a servant in the family of Mrs. Birdseye’s (one of the appellants) mother, and since that time had worked occasionally in the family, and there had always existed the intercourse and friendly feeling between Mrs. Birdseye and her family and the testatrix natural under such circumstances. For sometime before her death the testatrix had expressed the intention of leaving her parlor furniture, or other of her belongings, to Mrs. Birdseye or her daughter. This settled purpose of leaving the bulk of her property to Roman Catholic charities, and her parlor furniture or other personal remembrance to the Birdseyes, was carried out by the will in dispute. In view of these facts the testimony plainly furnishes no support for the claim of undue influence, unless it can be found in the inference sought to be drawn from the fact that three days before the execution of her will the testatrix made another will in which Mrs. Birdseye and her daughter are mentioned as executrix and legatee. Such fact might tend to support an inference of undue influence if it involved a sudden and otherwise unaccountable change of purpose. It is clear that this condition did not exist. It seems to us patent from all the testimony, including that of the appellants, that both wills were executed in furtherance of the testatrix’s admittedly settled purpose, namely, that none of her property should go to the State or to unknown relatives; that the Birdseye family should be remembered in the gift of some personal belongings, and that the bulk of her property should go to the support of Roman Catholic charities. The first will leaves the accomplishment of this purpose in doubt, if it does not involve the escheat of the main part of her property to the State, or its distribution as intestate estate; the second will expresses the purpose clearly. It appears that directly after the execution of the first will the testatrix became dissatisfied with it for fear it did not express her purpose with sufficient clearness, expressing her dissatisfaction to Mrs. Birdseye *628 and others, and it seems not improbable that the making of the second will was the natural result of tire testatrix’s dissatisfaction with the first, and that the will was made by her for the purpose of giving effect more certainly to that general intent as to disposition of her property which she had wished to accomplish in making the. first will. Upon inspection of the whole record we are not satisfied that the trial judge could not properly have been convinced, in the course of the trial as coiaducted by him, that an injustice would be accomplished if the verdict of the jury were accepted and a judgment rendered thereon; that the verdict was against the evidence, and so palpably against the evidence as to warrant his belief that the jury had either failed to apply to the facts the law as stated to them by the court, or had acted under the influence of some controlling prejudice. There is no error in the judgment of the Superior Court. In this opinion the other judges concurred.