McGrory v. Fisher

Opinion by Me. Justice Pottee, Upon the trial of the issue in this case, the jury in answering questions submitted to' them, found that the written paper offered for probate as the will of P. Mc-Grory, deceased, was in his handwriting, but that he did not intend that it should take effect as his will. The court below overruled a motion for judgment for plaintiffs non obstante veredicto, and entered'judgment for defendant upon the verdict. Plaintiffs, two of the sisters of P. McGrory, the deceased, have appealed, alleging that the trial court erred in refusing binding instructions in their favor. The writing in question is not testamentary in form, nor can testamentary intent be clearly derived from the instrument itself. It consists of a list of various items of property, some real and some personal, and it refers to certain policies of life insurance. The list was written upon the back of a stray sheet of paper, and near the bottom of the sheet is a column of' figures, footed up, evidently intended to show the sum total of the value of the listed properties. About half way down the column of figures, and directly opposite one of the smaller items, the words “For Ev and Anna” appear, and below them, is the signature, P. McGrory. There is nothing on the paper to indicate whether it was the paper itself, as a memorandum, which was intended “for Ev and Anna,” or whether the words were intended to apply to the properties as listed. Nor was there anything to show when “Ev and Anna” were to take whatever was intended for them. The burden of proving testamentary intent was upon the proponents, and the court could not have given binding instructions upon the questions of fact arising out of the testimony, without invading the province of the jury. [157] The paper showed plainly the fact of an erasure, which was material, for it affects the words upon the paper which are essential to its validity as a will. The proponents both testified that they saw their brother write the paper, and neither of them saw him making an erasure. There was other testimony tending to show that it was made sometime afterward, and this is strengthened by an inspection of the paper itself. The time at which the erasure was made, was clearly a question of fact for the jury, and the trial judge properly instructed them that, if they found as a fact that the erasure was made after the time when the paper was written and signed, there was no evidence that the paper, as changed, was ever declared by the decedent to be his will, and no competent evidence that he intended the paper, as it then stood, to be his will. We find no merit in any of the assignments of error. They are all dismissed and the judgment is affirmed.