Appeal of Rawley

• Decision Date: 09 April 1919
• Citation: 106 A. 120
• Parties: Appeal of RAWLEY.
• Court: Maine Supreme Court

106 A. 120

Appeal of RAWLEY.

Supreme Judicial Court of Maine.

April 9, 1919.

Exceptions from Supreme Judicial Court, Knox County, at Law.

Proceedings for probate of the will of Barney P. Rawley, contested by Ernest Rawley. Prom decree allowing the will, contestant appealed to the supreme court of probate, and, having excepted to rulings, contestant excepts to decree of probate. Exceptions overruled.

Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, WILSON, and DEASY, JJ.

A. S. Littlefield, of Rockland, for appellant.

Edward C. Payson and Gilford B. Butler, both of Rockland, for appellee.

DEASY, J. Appeal to the supreme court of probate from allowance of will of Barney P. Rawley by the probate court of Knox county. The only specified reason of appeal is undue influence. A jury trial was asked and ordered at the September term, 1918. The contestant claimed the right of opening and closing, and objected to testimony offered by the appellee to make formal proof of the will. This claim was denied and objection overruled by the presiding justice.

To these rulings the contestant excepted, and filed his bill of exceptions.

After hearing the judge made his decree affirming that of the judge of probate. To this decree the contestant excepted, and filed a second bill of exceptions.

Both bills of exceptions were allowed, but to the first the presiding justice appended this clause:

"The foregoing exceptions are therefore allowed, if, in the opinion of the law court, the same are allowable and the appellant entitled to have them allowed."

Allowance of Exceptions.

These exceptions were properly allowed.

The rulings were not findings of fact and not discretionary. They were rulings of law. If erroneous and prejudicial, exceptions afford a proper, and perhaps the only, appropriate remedy.

The rulings were an opinion and direction in a civil proceeding of "the court held by one justice." The contestant, being aggrieved, seasonably presented exceptions as authorized by R. S. c. 82, § 55.

It may be urged, however, that the rulings which are the subject of the contestant's first bill of exceptions are not, and cannot be, prejudicial, inasmuch as a jury verdict in a probate appeal is advisory only, and the opinion of the presiding justice cannot be supposed to be affected by the course of procedure.

To so hold in a case where we have not the evidence before us would be in effect to say that a judge in making his decree cannot under any circumstances be influenced by a jury verdict.

The Right to Open and Close.

The right of opening and closing is a legal right, not a mere matter of judicial discretion. Unless clearly shown to he nonprejudicial, exceptions lie to its erroneous denial. Johnson v. Josephs, 75 Me. 547; Reed v. Reed, 115 Me. 441, 99 Atl. 181.

The right to open and close belongs to the party against whom judgment would be rendered if no evidence were introduced on either side. Reed v. Reed, supra, and cases cited.

The appellant contends that the appellee needs to produce no evidence in the first instance and none at all except to refute, if he can, the appellant's evidence of undue influence. He urges that, if no evidence were produced by either party, it would be the duty of the court to affirm the decree of the probate court. The appellee maintains, on the other hand, that notwithstanding the only reason of appeal is undue influence, he would not be entitled to have the probate decree affirmed without introducing evidence to show the due execution of the will and the testator's soundness of mind at the time of its execution.

The appellant presents an able and ingenious argument and brief in support of his contention. We hold, however, that the position of the appellee is correct.

The contestant's argument, condensed and summarized, is:

1. That he has the burden of proof on the only issue, i. e., the only point "affirmed on one side and denied on the other." Bouvier.

But, admitting this to be true, still the appellee has the right to open and close if, in the first instance, to secure affirmance of decree, he has to prove "anything" (Johnson v. Josephs, supra), though not in issue according to the above definition (Dorr v. Tremont Savings Bank. 128 Mass. 350).

2. That the probate decree is not vacated by, but continues in force after, the appeal. "Further proceedings in pursuance of the matter appealed from cease." R. S. c. 07, § 35. But the decree, the contestant says, remains in force, not indeed justifying "further proceedings," such as appointment of executor, but in respect to findings not challenged by reasons of appeal, making a prima facie case for affirmation. Thus the contestant argues. But the status of a probate decree after appeal is not defined by the statute. It is left to judicial interpretation, and courts generally, including our own, hold that an appeal vacates the decree. Gllman v. Gllman, 53 Me. 188; Tarbox v. Fisher, 50 Me. 237; Milliken v. Morey, 85 Me. 342, 27 Atl. 188; Williams v. Robinson, 42 Vt. 658, 1 Am. Rep. 359; Crowninshield v. Crowninshield, 68 Mass. (2 Gray) 528; Boynton v. Dyer, 18 Pick. 4.

3. That the appellant is confined to his reasons of appeal. Burpee v. Burpee, 109 Me: 383, 84 Atl. 648, and cases cited. That, this being true, due execution and legal capacity, not being specified in the reasons of appeal, are impliedly admitted, and need not be proved.

The answer is that, even if the admission were express and assented to by the appellee, it would not, without the consent of court, relieve the proponent of the primary duty of proving the will.

Our reasoning relates to will cases. The law of wills is sui generis. It may well be that in other probate appeals findings not specified in the reasons of appeal are to be treated as admitted. Patrick v. Cowles, 45 N. H. 553. In most other cases courts order any judgment or make any decree within the scope of the pleadings that the parties agree upon; but no court would even by consent of all parties allow a will on its face invalid.

"Such transactions [agreements between parties in respect to wills], in fact, stand...