Appeal of Livingston

• Decision Date: 07 April 1893
• Citation: 26 A. 470,63 Conn. 68
• Parties: Appeal of LIVINGSTON et al.
• Court: Connecticut Supreme Court

26 A. 470

63 Conn. 68

Appeal of LIVINGSTON et al.

Supreme Court of Errors of Connecticut.

April 7, 1893.

Appeal from superior court, Windham county; J. M. Hall, Judge.

Proceeding's for the probate of the will of Julia Gibbons, deceased, to which objections were filed. From a judgment rendered on the verdict of a jury sustaining the will, opponents appeal. Affirmed.

M. A. Shumway and E. M. Warner, for appellants.

C. E. Perkins and C. E. Searls, for appellees.

FENN, J. An instrument purporting to be the last will of one Julia Gibbons having been proved and approved by the court of probate for the district of Thompson, an appeal from the order and decree of said court was taken to the superior court, where the case was tried to the jury, who rendered a verdict sustaining the will, which was accepted by the court, and judgment rendered thereon. An appeal was taken from such judgment to this court. The appellants, in the superior cout, filed a single reason of appeal to the effect that the instrument was not the last will and testament of said Julia Gibbons, because she was improperly and unduly influenced to make such a will by one of the legatees named therein. The appellees denied such allegation, and upon these pleadings the case was tried. We quote from the record: "At the opening of the trial the appellants claimed the right, and made a motion, to open and close the evidence, and the arguments to the jury, on the ground that the only issue raised by the reasons of appeal was undue influence exercised upon the testatrix, and that the affirmative of this issue was upon the appellants; hut the court admitted the testimony of the attesting witnesses, offered by the appellees, as to the due execution of the will and the mental capacity of the testatrix, and permitted the appellees to open and close the argument. The appellants excepted." Was this ruling erroneous? That the affirmative of the issue of undue influence was upon the appellants there can be no doubt. Rockwell's Appeal, 54 Conn. 119, 120, 6 Atl. Rep. 198. The trial court so understood, and the only evidence, as the finding states, offered by the appellees in opening, was that of the attesting witnesses, and was confined to the due execution of the will and the mental capacity of the testatrix. Of course, the burden of proving such due execution and capacity, unless lawfully dispensed with, rested upon the appellees. But it is claimed they were dispensed with, being admitted. If this were any ordinary case or issue, it must be conceded that the appellants' contention would be correct, and that the appellants would be entitled to open and close. Thus, in Young v. Insurance Co.,59 Conn. 41, 22 Atl. Rep. 32, an action upon a fire insurance policy, where the answer admitted the allegations of the complaint, it was held that the defendant was entitled to go forward, though how far a ruling denying such right was a matter of discretion, not open to revision on appeal, was not determined, the case having been decided on other grounds. But this is not an ordinary case, and has never been treated as such in this state, but as a statutory and special proceeding. Thus, in Comstock v. Society, 8 Conn. 254, this court, in holding that on an appeal from a decree of probate, establishing a will, the burden of proof as to the capacity of the testator rests upon the party claiming under such will, who is therefore entitled to go forward on the trial, though such right was subject to the discretion of the court, and error therein not a ground for anew trial, said, (page 261:) "The real question to be tried was whether there was a valid will, and this question was to be decided in the same manner as if it had not been decided in the court of probate. Those who claim under the will must therefore take upon themselves the burden of proof, and the rule is that, where there is a necessity for any proof on the part of the plaintiff, he ought to begin,"—while in St. Leger's Appeal, 34 Conn. 446, courts of probate are described as "special and limited courts, without any common-law jurisdiction, and created by statute for the probate of wills and the settlement of estates." The statutes in reference to wills' are stated, and it is then said. "When, therefore, the executor, in conformity with his prescribed duty, exhibits the will to the court of probate which has jurisdiction, it becomes the imperative duty of that court, of its own motion, to take the custody of it, and proceed to inquire and determine whether it was executed according to the formalities prescribed, freely, by a person of lawful age and of sound mind and sufficient capacity, and is a valid will, and to approve or reject it accordingly." Then, coming to the duty of the superior court on appeal, the opinion continues, (page 447:) "An appeal from the judgment of a court of probate, accepting or rejecting a will, takes up to the superior court for retrial that special statutory issue, and nothing more; and the appellate court, having no jurisdiction of probate or testamentary matters, can only retry that special issue, and affirm or reverse the judgment of the court of probate, as that issue shall be determined by a jury, and certify such affirmance or reversal to that court, as a guide for its further action. Every fact which shows that the will is not a valid one is material under that issue, and an element of it, and is involved in its determination." And, finally, speaking of reasons of appeal, the court said: "Reasons of appeal, therefore, are not necessary, in our practice, to make issues, and if they are filed, and issues joined upon them, they are subordinate issues, on the elemental facts, of the main or real issue, which the jury must try and determine." "Reasons of appeal are necessary in those states where the main issue is not sent to the jury, but one or more special issues, real or feigned, are made up on the disputed elemental fact or facts, and are sent by the court to a jury of the same or a different court, to be tried and determined by a special verdict, and the court, on the return of the special verdict, determines the main issue in accordance with it. But in our simple practice, and under our statute, the main or real issue goes directly to the jury, and with it go the subordinate elemental issues or facts on which it turns; and that main or real issue must be found by the jury, by their verdict, in some form, as the basis for a judgment by the court, or there will be a mistrial." "Unquestionably they [reasons of appeal] have served, and now serve, a useful purpose, as a notice to the opposite party of the grounds of objection to the will which will be relied upon at the trial, and by limiting the party filing them to evidence of the objections alleged in them, and were probably introduced for that reason. But however that may be, as the law now stands, and the whole case goes...