Patten v. Cilley

Her Curiam. * 1. The defendant’s application for the removal of tlie cause to tlie federal court, on the ground of local prejudice, presented a jurisdictional question which counsel have argued at considerable length, but upon which tlie opinion of this court would be of little practical value. After tlie trial, the federal court decided tliat it bad no jurisdiction of tlie subject-matter, and dismissed tlie petition. In re Cilley, 58 Fed. Rep. 977. As this court lias no power to overrule that decisiou, or to compel the circuit court to entertain jurisdiction of the case, a reexamination here of the question decided in tliat court would bo useless and unprofitable. Nor is it expedient for us to inquire whether the filing of tlie petition for removal suspended the power of tlie state court to proceed with tlie trial, because tlie federal court held that it did not have that effect. Their language is, that “ as this petition, in the absence of an express order from this court, did not restore tlie original cause, but left it in tlie state court, to which it was remanded, it only remains for us to dismiss the petition, and it is so ordered.” In re Cilley, supra. A remanding order was unnecessary, the case having remained in this court during tlie pendency of tlie petition in tlie circuit court. 2. At tlie trial the defendant claimed the right to open and close, and excepted to the ruling that the real issue was the validity of the will, and that the plaintiff had the burden of proof and the right to open and elose. A paper purporting to be *526 executed by Matilda P. Jenness was ajaproved and allowed as her will by a decree of the probate court, and the defendant’s appeal raises the question whether the decree shall be reversed or affirmed. Under the statute requiring him to set forth the reasons of his appeal (P. S., c. 200, s. 2), he waived all questions not .stated in his appeal. But this waiver does not abridge the rights ■of the plaintiff. On his motion any error in the decree may be corrected here. Patrick v. Cowles, 45 N. H. 553. The appeal is to the supreme court of probate, and is not a transfer of issues from a probate to a common-law jurisdiction. If no county judge ■of probate could sit, the will Avould be allowed or disallowed, and the estate Avould be settled, in this court. “ Upon appeal, the Avhole case would be brought within the jurisdiction of the supreme court of probate.” Perkins v. George, 45 N. H. 453, 454; Moses v. Julian, 45 N. H. 52, 59, 60. The plaintiff suggests no error in the decree, and there is no ■occasion for the exercise of the probate powers of this court on ¡anything but the original issue, whether the paper offered for probate by the plaintiff should be approved and allowed as Matilda’s will. The defendant’s reasons of appeal are, — (1) Undue influence, •over-persuasion, and artful misrepresentation. (2) The deceased did not understand the nature, extent, amount, and value of her property. (3) The instrument offered for probate Avas not duly executed. The omission of other reasons Avas a Avaiver of the ■questions of Matilda’s age and 'sanity. On the first day of the trial the defendant waived the questions raised by his second and third reasons. Upon these Avaivers, there was nothing for trial but the question presented by his first reason. Plis division of the general probate issue into its component parts, and his waiver ■of all parts but one, left the issue to be tried on only one of the points on which it would have been tried if there had been no waiver. On the determination of that one, the decree is to be affirmed or reversed. If Matilda had given her property to the plaintiff by deed and ■died intestate, and the plaintiff had brought a writ of entry against her heirs, at the trial of the action on the general issue a specifi- ' cation of the defence could be filed voluntarily or under an order ■of court. A specification alleging undue influence exercised by the plaintiff in obtaining the deed as the sole defence, Avould narrow the trial on the plea of nnl disseizin. Between this plaintiff and this defendant, the probate proceeding, in substance and in ■effect, is an action brought by the executor, who asserts a testamentary title against an heir who denies that title. The heir’s abandonment of two reasons of appeal was a material modification of his specification of defence. It narroAved the trial on the question whether the decree should be affirmed or reversed, which is a secondary form of the issue whether the paper offered by the plaintiff for probate is Matilda’s will. The *527 change of specification did not give the defendant the position ■of a plaintiff, nor send an issue from the supreme court of probate to a common-law jurisdiction. Whether the defence consisted of many items or only one, the executor continued to be the plaintiff, the party having the affirmative, the party asserting the validity of the will, as he asserted it before the defendant abandoned his third reason of appeal and ceased to deny the due execution of the will. The appellant continued to be the defendant, denying its validity on the ground of undue influence. The mere narrowing of the trial, in either of the probate courts, by oral or written waivers, reasons of appeal, specifications, or other steps ■of procedure, which select from all the points of possible controversy those which the defendant elects to try, does not extinguish the original issue, which was necessarily decided when the decree was made, and will necessarily be decided again when the decree is affirmed or reversed. In one sense and for some purposes the question is, whether the execution of the paper called a will was obtained by undue influence. In another sense and for other purposes the question Is, whether that paper should be approved and allowed as Matilda’s will and whether its validity shall be established by an affirmance of the decree of the probate court, or whether its invalidity shall be established by a reversal of that decree. Whatever may be said of the verbal or the substantial character of the distinction between the general and the special form of the question, and however important the distinction may be for some practical purposes and however unimportant for others, the final decision of the defendant’s appeal will be a probate decree affirming or reversing the decree in rem made by the probate court. From the time when the plaintiff presented the paper for probate till now lie has been the party affirming it to be a will duly made, and he will hold that position to the end of the litigation. “ The party who affirms that a will was made has the primary burden of proof and the accompanying right to close.” Judge of Probate v. Stone, 44 N. H. 593, 605. “Whatever form the issues which are sent to the trial term may assume in such cases, the nature of the proceeding is never lost sight of, nor is the final object to be attained to be kept from view.” The case “is to be tried in this the supreme court of probate according to the principles adopted and the rules applied for the trial of the same questions in tlie probate court. And the question to be determined, no matter in what form the issues may be drawn, is tlie due and legal execution of the will. ... It being understood that the object of the proceeding is to prove the due execution of the will without regard to the particular form of the issues, the executor must first produce the will to be proved, and call the subscribing witnesses if alive and within the jurisdiction. The affirmative is in fact on him, and lie has uniformly been allowed the *528 close.” Boardman v. Woodman, 47 N. H. 120, 132; Hardy v. Merrill, 56 N. H. 227, 233; Perkins v. Perkins, 39 N. H. 163, 168; Whitman v. Morey, 63 N. H. 448, 455. If the defendant were regarded as the party having the affirmative, his exception could not be sustained, as it does not appear that injustice was done by the ruling that the plaintiff was entitled to open and close. Schoff v. Laithe, 58 N. H. 503; Amoskeag Mfg. Co. v. Head, 59 N. H. 332, 336, 337; Hilliard v. Beattie, 59 N. H. 462, 464; Rogers v. Kenrick, 63 N. H. 335, 341. 3. On the question of undue influence, the qualitjr of Matilda’s mind was a material fact. It was competent for the parties to show that she was firm and decided, or irresolute and easily persuaded to conform to the wishes of others. Foster v. Dickerson, 64 Vt. 233, 249. Witnesses found by the court to be competent to form valuable opinions on the subject, and to have had opportunities to form them, could give their opinions. Since the decision in Hardy v. Merrill, 56 N. H. 227, 242, 248, 249, the comprehensive rule there laid down, applicable to mental qualities as well as conditions, has been considered settled. Carpenter v. Hatch, 64 N. H. 573. The course taken at the trial was in accordance with our practice. There may be occasion to confine this class of evidence within limits of reasonableness and utility; but it does not appear that those limits were passed. 4. It was competent for the plaintiff to show why the testatrix did not give her property to her heirs, of whom John J. Cilley was one. Belknap v. Robinson, ante, p. 194; Foster v. Dickerson, 64 Vt. 233, 249. It appeared that she was displeased with his conduct while acting for her in a controversy upon her sister’s will. In an adjustment of that controversy he did not obtain for her so large a sum as she desired. It was open to the plaintiff to show the extent and the special grounds of her displeasure, subject to such limitations as might be imposed on various grounds of reasonableness. The plaintiff contends that the jury might find that the omission to disprove the answer to the bill in equity was an admission that John did not represent Matilda at the meeting, and that this was a special reason for her displeasure. Upon the evidence to which our attention has been called there does not seem to be a very substantial ground of fact for contending that he sacrificed or neglected his aunt’s interests at that meeting, and that his failure to meet the answer by proof in that suit was an admission of its truth ; but it cannot be held that the answer of the heirs was incompetent as matter of law. 5. In the charge, the attention of the jury was called to the relations of trust and confidence existing between the testatrix and the plaintiff, and all the circumstances bearing on the question of undue influence, and it was not error to refuse to give further instructions on that subject. Inferences of fact may be drawn against a confidential agent in cases like this ; but there is *529 no presumption of law against the agent, and the three points presented in the requested instructions might have led the jury to regard matters of fact as matters of law. Carpenter v. Hatch, 64 N. H. 573, 575-577; Whitman v. Morey, 63 N. H. 448, 452, 453. Exceptions overruled: decree affirmed. Blodgett and Chase, J J., did not sit: the others concurred. Footnotes [*] See foot-note on page 80.