123 Mass. 590 (Mass. 1878), Davis v. Davis
| Judge | Gray C. J. Ames & Lord, JJ., Endicott, JJ., absent. |
| Parties | Edward A. Davis & others v. Edna J. Davis, executrix |
| Docket Number | . |
| Date | 22 January 1878 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Citation | 123 Mass. 590 |
Page 590
Argued January 11, 1878
Page 591
Middlesex. Petition to establish the truth of exceptions disallowed at the hearing and trial of an appeal from a decree of the Probate Court, admitting an instrument to probate as the will of Thomas Davis, by which he appointed his wife, Edna J. Davis, executrix; directed his executrix to furnish his son Franklin M. Davis a suitable support out of the estate until he became of age; devised and bequeathed all the residue of his estate to his wife, so long as she should remain unmarried and his widow, with remainder, on her decease or marriage, to his four sons, to be divided among them and the issue of any deceased son by right of representation; directed that the share of his youngest son, Franklin M., in his estate, together with the estate transmitted to him by his mother, should not exceed the share of his other sons in his estate; and authorized his wife, so long as she should remain unmarried and his widow, to sell at public or private sale any part or all of his real estate, when it could be done to advantage, and to execute proper conveyances of the same, the proceeds to be deposited in a savings bank, or, with any personal property left by the testator, to be invested in certain securities, and his wife, if the income of the estate was insufficient, to use so much of the principal as might be necessary for her support.
The reasons of appeal were as follows: 1st. "Because the said instrument was illegally made and executed. 2d. Because the said Thomas Davis, at the time when he executed said instrument, was not in a sound and disposing state of mind. 3d. Because said Thomas Davis was induced to execute said instrument by misrepresentation, deception and fraud. 4th. Because said Thomas Davis was induced to execute said instrument by undue influence."
The present petition alleged that upon an application to frame issues to a jury, Soule, J., ordered that the only questions submitted to them should be, 1st, whether the deceased, at the time of executing the instrument, was of sound mind; 2d, whether the execution of the instrument was procured by the fraud and undue influence of the executrix, and of others acting in her behalf; and refused the request of the appellants that the following additional questions should be submitted to the jury: 3d, whether the instrument was the will of the deceased, executed by him with knowledge of its contents; 4th, whether the deceased, at the date of the instrument, wished or intended to give his wife the right, in her own discretion, to dispose of his whole estate, or of any part of the principal thereof; and that to this order and refusal the appellants alleged exceptions.
The petition further alleged, in substance, that a trial by jury was had upon issues framed according to the order aforesaid, and a verdict returned thereon in favor of the executrix; that at such trial other exceptions were taken, and, together with the exception before mentioned, were reduced to writing, filed, notified to the adverse party, and presented to the judge, within three days after the verdict; that the judge, after hearing the counsel of the parties, prepared a new draft of the bill of exceptions, stating the same questions and in the same aspect as in the bill of exceptions presented to him by the appellants, except in omitting their exception to the order and ruling upon the issues to be submitted to the jury; and that the judge made a certificate under his hand, disallowing the bill of exceptions presented as incorrect, because no exception had been taken to his refusal to submit the additional issues to the jury, but expressing his readiness, if the appellants would strike out the alleged exception to such refusal, to allow a bill of exceptions substantially as drawn by him as a substitute for the bill presented.
The petition prayed that the truth of all the exceptions might be established; and the petitioner moved that it might be referred to a commissioner to report the facts to the court.
By direction of the court, the argument was confined, in the first instance, to the questions, whether the refusal to submit the additional issues to the jury was the subject of exception; whether these issues were included in the reasons of appeal; and whether, if the exception to such refusal was rightly disallowed, the petitioners were entitled to be heard upon the exceptions taken at the trial.
Exceptions overruled.
OPINION
Page 592
It was said by this court, in a case which involved a large amount of property, and which was fully and ably argued and carefully considered upon a report of the justice before whom the issues were framed and the trial had, that when a testamentary instrument offered for probate is executed and attested as required by statute, and has not been revoked or cancelled, only three questions can arise: 1st. Was the testator
Page 593
at the time of executing the instrument, of sound and disposing mind and memory? 2d. Was the instrument executed by him under fraud or undue influence? 3d. Did he execute the instrument animo testandi? Barker v. Comins, 110 Mass. 477, 487.
In the present case, the first and second of these questions were submitted to the jury; and it may well be doubted whether the third question was included in the reasons of appeal, or was fairly presented by the additional issues tendered and disallowed. But we have no occasion to consider this, because the refusal to submit these issues to the jury is not the subject of exception.
By the Constitution and laws of the Commonwealth, trial by jury in probate appeals is not a matter of right, but rests in the usages and discretion of the court. The fifteenth article of the Declaration of Rights, which secures trial by jury, expressly excepts "cases in which it has heretofore been other ways used and practised;" and before the adoption of the Constitution, and for some time after, all appeals from judges of probate...
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