Appeal of Thompson
| Decision Date | 09 April 1919 |
| Citation | 106 A. 526 |
| Parties | Appeal of THOMPSON In re FORD'S WILL. |
| Court | Maine Supreme Court |
On Motion from Supreme Judicial Court, Lincoln County.
In the matter of the estate of M. Amanda Ford. From a decree allowing the probate of decedent's last will and testament Maggie L. Thompson appealed to the supreme court of probate for Lincoln county, where the matter was submitted to the jury on questions, and Maggie L. Thompson moved for a new trial, addressed to the law court, without any decree being made by the supreme court of probate. Appeal dismissed and decree of probate judge affirmed.
Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, DUNN, MORRILL, WILSON, and DEAST, JJ.
Percie D. Jordan, of Boston, Mass., and George A. Cowan, of Damariscotta, for appellant.
H. E. Hall and" Weston M. Hilton, both of Damariscotta, for proponent.
This is a probate appeal. On the 4th day of September, 1917, the judge of probate of Lincoln county by proper decree allowed the last will and testament of M. Amanda Ford. From that decree an appeal was taken to the supreme court of probate for Lincoln county. At the October term, 1917, the appeal was heard, and two questions of fact were submitted to the jury—one, whether at the time of execution of the will the testatrix was of sound and disposing mind and memory; and the other whether said instrument was her voluntary act, uncontrolled and uninfluenced by others. To each question an affirmative answer was returned. Counsel for appellant filed thereupon a simple motion for new trial addressed to the law court, without any decree being made by the supreme court of probate.
As a matter of strict statutory construction it may well be doubted whether this course of procedure is correct; but in view of the fact that such a practice has been of long standing, a majority of the court do not feel compelled to dismiss the motion on this ground without considering the merits of the case. If the customary procedure is to be changed or modified, it had best be done by rule of court.
A careful examination of the record to determine the merits of the controversy leads irresistibly to the conclusion that the findings of the jury were in strict accord with the testimony, and that the decree of the judge of probate in allowing the will was without error.
The entry will therefore be—
Appeal dismissed, with costs.
Decree of judge of probate affirmed.
SPEAR, J. I concur in the result, but arrive at it in a way different from that of the majority. The following opinion sets forth more fully the corrections that apparently should be made in the procedure in this class of cases, which the majority opinion perhaps wisely suggests should be made by a rule of court rather than by a declaration of law.
But this opinion will at least have the merit of calling the attention of the profession to an examination of the statutes and the preferable mode of procedure to be pursued thereunder.
On the fourth Tuesday of October, 1917. the will of M. Amanda Ford, of Bristol, in the country of Lincoln, was proved and allowed by the judge of probate.
From the decree of allowance an appeal was taken, assigning as reasons undue influence and unsound mind. In the supreme court of probate the appeal was heard by a jury upon questions properly framed to submit each of these reasons.
Upon each, under proper instructions, the jury found for the proponent. Without any decree by the supreme court of probate adopting or disregarding the verdict, the appellant came directly to the law court upon motion for a new trial on the usual grounds. This case presents an irregularity in practice which we think should be corrected. It will be observed by the preceding statement that the probate appeal here involved was submitted directly to the jury upon questions framed by the court; that a verdict was rendered; and that the motion for a new trial is addressed directly to the law court.
But we find no statute that provides authority or sanction for this method of procedure. R. S. c. 67, § 36, prescribes the proceeding for disposing of a probate appeal, namely:
"Such appeal shall be cognizable at the next term of the supreme court, held after the expiration of thirty-four days from the date of the proceeding appealed from, and said appellate court may reverse or affirm, in whole or in part, the sentence or act appealed from, pass such decree thereon as the judge of probate ought to have passed, remit the case to the probate court for further proceedings, or take any order therein, that law and justice require; and if, upon such hearing, any question of fact occurs proper for a trial by jury, an issue may be framed for that purpose under the direction of the court, and so tried."
The verdict of the jury under this clause is merely advisory, to inform the conscience of the court, tinder the precise language of this present statute the court held in Bradstreet v. Bradstreet, 64 Me. 204, as follows:
It accordingly follows that a verdict of the jury may be disregarded or adopted by the supreme court of probate without right of appeal or exception to the act of that court. An exception may be taken to his decree, which simply raises the legal question whether there is any evidence to support it, but not because either party had obtained any legal rights by virtue of the verdict it further follows, a verdict being only advisory, that it has no effect one way or the other without a decree, as the decree may be the one way or the other, it often happening that the court does not follow the advice of the jury. It is interlocutory, so to speak. Hence this verdict cannot get past the sitting justice, to go anywhere, either to the law court above or to the probate court below, without a decree of the sitting justice.
But in the present proceeding the verdict is brought directly to the law court, not to sustain or overrule the motion, but for a final decree upon the facts, and the court have several times said that this is proper practice. Carvill v. Carvill, 73 Me. 136; McKenney v. Alvord, 73 Me. 221; Backus v. Cheney, 80 Me. 17, 12 Atl. 636. We are of the opinion that these cases are not based upon the provision, express or implied, of any statute. The law court is a statutory court, and derives its jurisdiction and powers from the statute. The probate court and supreme court of probate are statutory courts, and in like manner derive all their powers from the statute. None of these courts can exercise any common-law jurisdiction, nor any powers not conferred by statute. Under no statute is the law court authorized to perform any of the functions of the probate court, either original or appellate. R. S. c. 82, § 46, defines the jurisdiction of the law court, and the only clause under which the present case could come is this: "Cases in which there are motions for new trials upon evidence reported by the justice." But under this clause the court has never gone beyond the function of deciding whether the verdict shall stand or be set aside. No case can be found, except in the cases cited, where the law court has ever undertaken to perform the statutory duties of any other court, by issuing judgments and decrees, except by express statutory authority. It may be here noted that R. S. 1871', is referred to in the opinions here discussed.
In Carvill v. Carvill the court do not undertake to analyze the statute, but, ex cathedra, assume that a statute applies that has no relation whatever to the law court. Wo find this language in the opinion, at the bottom of page 138 of 73 Me.: and so on. But what does the phrase "this court" mean as used in this opinion? The law court was speaking. But this statute, invoked as authority, lacks the remotest reference to the law court. The statute, instead of supporting, contravenes the every basis upon which the opinion is founded. Section 26 provides for an appeal to the "next term of the Supreme Court" sitting at nisi. Section 21, same chapter, declares that the Supreme Judicial Court is made the supreme court of probate. Hence "this court," as used in the opinion, was not the law court at all, but the sitting justice, whoever he may be, at a nisi prius term, who acts, in all probate appeals at such term, as the supreme court of probate. There is no other appellate court known to the statute authorized to finally pass upon any matter originating in the probate court, nor does the opinion attempt to point out any other.
But the law court passed fully upon the merits of that case. Accordingly the phrase "this court" must have been intended to mean, to give any force to the reasoning, that the law court and the supreme court of probate are one and the same, in their jurisdiction and power over probate appeals whereas, as has been shown, the supreme court of probate is a single member of the Supreme Judicial Court, whose appellate jurisdiction is entirely limited to a nisi prius term; that is, whose powers are absolute over all probate proceedings, including the verdict of a jury, and whose decrees are final, without appeal, and subject to exceptions only upon matters of law. It would therefore seem clear that "this court" is...
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Appeal of Martin
...The court noted that the overruling of the motion had the effect of sustaining the decree of the appellate court. In Appeal of Thompson, 118 Me. 114, 106 A. 526, the jury answered submitted questions. Counsel as to whose contentions the answers were adverse interposed a new trial motion. No......