Appeal of le Prohon

• Citation: 102 Me. 455,67 A. 317
• Parties: Appeal of LE PROHON. In re GREENE'S ESTATE.
• Decision Date: 01 May 1907
• Court: Supreme Judicial Court of Maine (US)

67 A. 317

102 Me. 455

Appeal of LE PROHON. In re GREENE'S ESTATE.

Supreme Court of Maine.

May 1, 1907.

Appeal from Supreme Judicial Court, York County.

Application for the probate of the will of Ellen M. Greene, deceased. From a decree denying the probate, proponent appeals. Verdict for proponent, and contestant excepts. Exceptions sustained.

Appeal from a decree of the judge of probate, York county, refusing to allow an instrument as the last will and testament of Ellen M. Greene, late of Saco, deceased.

Ellen M. Greene died in December, 1904, and she left as her next of kin and heirs at law one brother, Charles Frederick Greene, and several nephews and nieces, one of whom is the appellant and plaintiff. On the first Tuesday of September, 1905, administration upon the estate of the said Ellen M. Greene was granted to one Melville H. Kelley. Shortly after the death of the said Ellen M. Greene a mutilated instrument was found purporting to be the last will and testament of the said Ellen M. Greene, but the signature of the said Ellen M. Greene thereto had been cut out. This instrument was afterwards offered for probate, but after hearing the judge of probate dismissed the petition for the probate of the alleged will, and thereupon the plaintiff, Elizabeth M. Le Prohon, who is the beneficiary named in the alleged will, took an appeal from this decree to the Supreme Judicial Court sitting as the supreme judicial court of probate, September term, 1905, York county.

The case was continued to the January term, 1906, of said Supreme Judicial Court. During the continuance Charles Frederick Greene, the aforesaid brother of the said deceased, Ellen M. Greene, died. No administrator of the estate of the said Charles Frederick Greene having been appointed, his widow, alary C. Greene, appeared as an heir at law to contest the aforesaid appeal.

Tried at the said January term of said Supreme Judicial Court sitting as the supreme court of probate. The verdict sustained the instrument as the last will and testament of said deceased, Ellen M. Greene, and as neither revoked nor canceled at the time of her death.

The defendant, Mary C. Greene, then filed a general motion for a new trial, also a motion for a new trial on the ground of newly discovered evidence. Also during the trial the defendant offered the testimony of James O. Bradbury, an attorney at law, with referonce to an interview which he once had with the deceased, Ellen M. Greene, in relation to "the best way to revoke a will." This testimony was excluded, and the defendant took exceptions. Also the defendant requested the following instructions: "It must be proved by indisputable evidence that the canceled paper once existed as a finished will, and it must also be shown by evidence equally indisputable that Miss Greene adhered to it throughout in mind and intention, notwithstanding its cancellation. In the absence of either of these indisputable requisites, the presumption is that the paper is not her will." These instructions were refused, and the defendant excepted.

The two motions and the last exception were not considered by the law court.

The case appears in the opinion.

Argued before WISWELL, C. J., and WHITEHOUSE, SAVAGE, STROUT, and SPEAE, JJ.

George W. Heselton and Cleaves, Waterhouse & Emery, for plaintiff. George F. & Leroy Haley, for defendant.

SPEAR, J. This is an appeal from a decree of the judge of probate refusing to allow an instrument as the last will and testament of Ellen M. Greene, deceased. Ellen M. Greene, an aged and unmarried woman of Saco, met her death by an accident in her own home the night before Christmas, A. D. 1904. Her only relative in Saco at the time was Charles Frederick Greene, a brother, who lived on North street. She left as her next of kin and heirs at law one brother, Charles Frederick Greene, and a large number of nephews and nieces, one of whom is Elizabeth M. Le Prohon, the original appellant in this case.

Administration upon her estate was granted to Melville H. Kelley, on the first Tuesday of September, A. D. 1905. A week or more after her decease a mutilated instrument purporting to be her last will and testament was found. This instrument afterwards offered for probate was mutilated by having the signature of the testatrix cut out, and the contention of the proponent was that this mutilation was done after the death of the testatrix, while the contestants claim it was done before. Upon hearing the judge of probate dismissed the petition for probating the will, and Elizabeth M. Le Prohon, the beneficiary therein named, claimed and entered an appeal at the September term, of the Supreme Judicial Court for York county. The case was continued to the January term, and during the continuance Charles Frederick Greene died. No administrator of his estate having been appointed, his widow, Mary C. Greene, appeared as an heir at law to contest the appeal. The court submitted to the jury the following questions of fact:

"(1) Was the instrument offered by the proponent as the last will and testament of Ellen M. Greene properly executed by her as and for her last will and testament at the time of its date?

"Answer. Yes.

"(2) Did such instrument, at the time of her death, exist as the last will and testament of the said Ellen M. Greene, unrevoked by her?

"Answer. Yes.

"(3) Was the cutting of the signature from the paper offered as the will of Ellen M. Greene done by her, or by any person by her direction in her presence?

"Answer. No.

"(4) Was the cutting of the signature done by Ellen M. Greene, or by any person by her direction in her presence, with the intention of revoking her will?

"Answer. No."

From these questions it is evident that the issues of fact presented to the jury was whether the mutilation of the will was the act of the testatrix herself, or agent, or was done by some other person subsequent to her decease.

The case comes here on exceptions and motion. The first exception relates to the exclusion of the testimony of James O. Bradbury, of Saco, an attorney at law, with reference to an interview which he had with the testatrix, of the following tenor:

"In the fall of 1903, as I was going down by her house from dinner, she was out at the gate and stopped me, and asked me in. I went in, and she asked me some questions about the matters of the real estate, and then she asked me what I thought was the best way to revoke a will.

"I told her that was a practical question; that any actual destruction of the will was sufficient. I told her that sometimes people burned such papers. She asked me if cutting the name from a will was a destruction or revocation of the will, and I told her if the testator cut the name knowingly from the will, that that was a destruction of the will, and then I added that, while as a matter...