Goodwin v. Prime

Emery, J. This was a petition under § 25, of c. 63, B. S., to the Supreme Court of Probate for leave to enter an appeal from a decree of the, court of probate for York county, the time within which such appeal could have been entered of right having expired. The decree sought to be reviewed allowed as valid an instrument purporting to be the will of Mr. Kennard in which Mr. Prime was named executor. The petitioner was an heir. The alleged error in the decree was in holding Mr. Kennard to have been of sound mind at the time of the execution of the supposed will. At the hearing upon the petition before the Supreme Court of Probate sitting in York county, the justice of that court upon the question of the sanity of Mr. Kennard received in evidence against the objection of Mr. Prime (named executor) a bill in equity signed by Mr. Prime, as such executor, in which he alleged that Mr. Kennard, his testator, was of unsound mind. Again, when the petitioner had put in all her evidence tending to show the insanity of Mr. Kennard at the time of the execution of- the will, and the respondent Mr. Prime had put in his evidence tending to show that the petitioner was in fault in not filing her appeal within the time fixed by statute, Mr. Prime, as executor, further offered evidence tending to rebut the evidence of the petitioner upon the question of the sanity of Mr. Kennard, and affirmatively tending to establish his sanity. The justice declined to hear this evidence. To the action of the justice in receiving in evidence the bill in equity, and in declining his offered evidence upon the question of Mr. Kennard’s sanity, the executor, Mr. Prime, excepted and brings his. exceptions to the law court. If upon this petition the court could adjudicate upon the issue of sanity, or could reverse or modify in the least the decree of the [362] Probate Court upon that issue, then Mr. Prime would undoubtedly have the right to bring these rulings before the law court for review. But such is not the case. There was no issue formed for trial upon that question. The petitioner was only asking for an opportunity to be heard upon that issue in the Supreme Court of Probate. The only order that could be made by the court was that she should or should not have that opportunity. The petition, therefore, was addressed to the judicial discretion of the justice of the Supreme Court of Probate who should happen to hear it. The law court cannot substitute its discretion for his. When the determination of any questions rests in the judicial discretion of a court, no other court can dictate how that discretion shall be exercised, nor what decree shall be made under it. There are in such cases no established legal principles or rules by which the law court can measure the action of the sitting justice unless indeed he has plainly and unmistakably done an injustice so apparent as to be instantly visible without argument. Capen v. Skinner, 139 Mass. 190 ; Moulton’s petition, 50 N. H. 532. “Discretion implies that in the absence of positive law or fixed rule the judge is to decide by his view of expediency or of the demands of equity and justice.” State v. Wood, 23 N. J. L. 560. In this case the justice of the Supreme Court of Probate hearing the case did not rule that the bill in equity was admissible in strict law as upon a trial" of the issue of sanity, nor did he rule that the evidence offered by the executor upon that issue could not lawfully be admitted. He simply decided that in his discretion he would receive the bill in equity but did not care to hear the evidence offered by the executor. ■ It is not apparent that in so doing he abused the discretion vested in him by the law. It was not his duty to try the issue of Mr. Kennard’s sanity. His decree would not determine that issue either way. He was simply to satisfy himself that the petitioner was without fault o,n her part in omitting to appeal within the statute time, and that “justice required a revision” of the decree. The evidence adduced by the petitioner might have been so ample and convincing that he might have properly adjudged it ought to be heard and considered, [363] whatever evidence might be adduced in contradiction. To be satisfied that “justice requires a revision” of the decree .is not to be satisfied that justice requires the decree to be reversed or modified. The word “revision” as used in this statute means “review” “re-examination”“looking at again”. Cent. Diet. It does not at all follow that the result of the revision will be a reversal or an alteration. There may be a complete affirmation. It was enough for the justice to be satisfied that the petitioner’s evidence was of such amount and character as to be an important factor in the right determination of the issue, whatever evidence might be brought against it. He could properly adjudge himself satisfied of this before and without hearing what might be adduced in rebuttal. “ In general a new trial (a review) is granted without inquiring further than is necessary in order to ascertain whether the party by reason of some accident or misfortune has been deprived of the opportunity of being heard.” Gilchrist C. J., in New England Mutual Fire Ins. Co., v. Lisbon Mfg. Co., 22 N. H. 170. It is only necessary that the petitioner satisfy the court that she petitions in good faith and actually intends to try the issues presented, and that she has good evidence tending to show the truth of her contention upon those issues. Moulton's Appeal, 50 N. H. 538. The executor, Mr. Prime, was not deprived of any right by the action of the justice. Upon the trial of the issue upon the appeal he can object to the bill in equity, and can offer his evidence as to sanity. He can then insist upon and receive a. ruling as matter of law, and if that ruling be against him he can have it reviewed upon exceptions. He could not require such a ruling at the hearing upon the petition where the issue was not presented, and hence has no right of exception. Exceptions dismissed.