Payne v. Banks

Fishér, J., delivered the opinion of the court. This was a proceeding in the Probate Court of Simpson county, to establish the will of one Isaac Alexander, deceased. The appellants being heirs-at-law, and distributees of the estate of the alleged testator, petitioned the Probate Court for an issue of de-visavit vel non, to be made up and directed to the Circuit Court of said county. The issue was accordingly made up as prayed by the petition and tried in said Circuit Court, when the jury found a verdict in favor of the will. This verdict being certified to the Probate Court, the appellants moved for a new trial in that court, and upon their motion being overruled, they appealed to this court. It is first objected, that the issue was not made up according to the statute, which declares that an issue shall be made up whether the writing produced be the will of the testator or not. Code, 652. This issue presupposes the existence of certain facts, which are supposed to have been alleged in the proper manner, and which if true will negative every presumption of a will. The issue directed by the statute is but a conclusion of law from the alleged facts. The object is to ascertain the truth of the fact or facts alleged, which being pronounced true, the law pronounces the judgment that the paper is not the alleged testator’s will, because it was procured by fraud, or because he was not of a sound and disposing mind, at the time it was signed and published; or for other sufficient cause. Instead of directing such an issue, the court framed the issue almost in the language of the petition, which set forth the grounds upon which it was asserted the will was void. If there be any [296] substantial difference between-the issue as made up, and the issue as directed by the statute, the difference is certainly not to the petitioners’ prejudice, for instead of being confined to a mere legal conclusion, they were permitted to establish the facts which they had averred, and any one of which when established, must produce the same result, to wit, that the paper produced is not the will of the “testator.” It is the province of the court to apply the proper rules of law to the facts of a particular case, and as long as there is a contest in regard to the truth of the facts, the court looks only to those rules of law, which must guide such investigation. But the investigation having closed, and the fact pronounced true, the court then makes the application of the law to the fact. This was what the petitioners desired; they alleged that the will was procured by fraud ; that the party was of unsound mind, &c., and prayed the court for an opportunity to establish these facts; that the rules of law applicable to such a state of case, might be declared by the court. It will be seen from a mere statement of the case, that the issue was made up as it should have been, upon the facts averred, — as it was upon these facts that the court had ultimately to decare the law, if they had been ascertained to be true. It is next said that there appears to have been two trials in the Circuit Court of the issue. From an inspection of the record, we are of opinion that this is merely a clerical error; the same verdict being twice transcribed by the clerk. But even if the fact were really so, it would amount to nothing, unless it could be shown that less weight must be given to two verdicts, than is generally given to one. Upon the testimony as a whole, it is necessary to remark that it in the clearest manner establishes the will. The law never presumes fraud, and hence, he who alleges it must prove it. The law presumes sanity, and hence this legal presumption must be rebutted. Viewing the questions in this light, the testimony brought forward by the contestants at most, amounts to but mere suspicion. Opposed to this is the testimony of the three subscribing witnesses, the attending physician, and even of some of the witnesses of the opposing parties, establishing the testator’s legal capacity to make [297] a will, and negativing every presumption of fraud ; even throwing out the testimony of Banks the executor, as to whom an objection is made, the same result must have followed. Decree affirmed.