Carvill v. Carvill

• Decision Date: 11 January 1882
• Citation: 73 Me. 136
• Court: Maine Supreme Court
• Parties: ROBERT D. CARVILL and others, appellants from a decree of the judge of probate, v. EZRA R. CARVILL.

73 Me. 136

ROBERT D. CARVILL and others, appellants from a decree of the judge of probate, v. EZRA R. CARVILL.

Supreme Judicial Court of Maine.

January 11, 1882

REPORT on motions.

This was an appeal from a decree of the judge of probate approving and allowing the last will and testament of James Carvill.

The cause was submitted to a jury who returned the following verdict:

" (1,) Was James Carvill, said testator, of sound mind at the time he executed the said instrument which purports to be his last will and testament? Answer. -- No."

" (2,) Was said testator induced to make and execute said instrument by fraud or undue influence. Answer. --Yes."

After the verdict the proponent, by his attorneys, N. and J. A Morrill, and S. C. Strout, moved to set it aside as against law and evidence and the weight of evidence; he also moved that notwithstanding the verdict the instrument propounded should be proved and allowed as the last will and testament of James Carvill and that the decree of the judge of probate should be affirmed.

And the appellants, by their attorneys, Frye, Cotton and White Hutchinson and Savage, and Webb and Haskell, moved the court for the disallowance of the said instrument and for the reversal of the decree of the probate judge.

S. C Strout, H. W. Gage and F. S. Strout, and N. and J. A Morrill, for the proponent, furnished elaborate briefs in support of the motion to set aside the verdict, contending that in the first place, that the final decree allowing or disallowing the will, must be the judgment of this court upon the whole case. Neither party has a right to a jury trial, it is granted in the discretion of the presiding judge upon such questions as he chooses to submit. R. S., c. 63, § 26.

The verdict is to inform the conscience of the court. It has not the force of a verdict at common law. Bradstreet v. Bradstreet, 64 Me. 204; Larrabee v. Grant, 70 Me. 79; Withee v. Rowe, 45 Me. 571.

Upon the question of jurisdiction, counsel claimed that the language of R. S., c. 63, § 21, does not change the nature, character or powers of the Supreme Judicial Court except to embrace in its jurisdiction matters of which the probate court has original jurisdiction, and cited Stetson v. Corinna, 44 Me. 29; R. S., c. 77, § § 2, 13; Id. c. 82, § 33.

Webb and Haskell, for the contestants.

The statute regulations governing, creating, or defining the jurisdiction of the supreme court of probate, (R. S., c. 63, §§ 21, 26,) do not in terms make any provision for a supreme court of probate sitting in banc; nor for exceptions from the rulings, decisions or decree of the court held by a single justice.

And in the provisions relating to the law court (R. S., c. 77, §§ 9, 10,) no allusion is made to the determination of questions of law arising in probate appeals, and no term of that court is provided which is consistent with the statute regulating probate appeals, for such appeals are to be to the next term of the supreme court in the same county.

The proper terms for the cognizance of probate appeals are held in the several counties by one of the judges as provided by R. S., c. 77, § 17. Unlimited jurisdiction is granted those terms save only the cases named in § 11 which come before the law court, the jurisdiction of which is limited to the cases enumerated in § 11, and probate appeals are not there named.

This court has not jurisdiction under § 3, of the same chapter, which gives general superintendence of all inferior courts, because the probate court is not an inferior court over which the superintendence extends. Peters v. Peters, 8 Cush. 538. The stat. 1852, c. 246, § 13, gave the right of exception to any matter of law decided and determined by the presiding justice in probate appeals, and the decision in Crocker v. Crocker, 43 Me. 562, was based upon that statute. But that provision was omitted from R. S., 1857, and the law was restored to its form and condition before the act of 1852. Grinnell v. Baxter, 17 Pick. 385; Dean v. Dean. 2 Mass. 150.

In Gilman v. Gilman, 53 Me. 184, the question now presented was not considered. And we feel safe in saying that in no case has the jurisdiction of this court sitting in banc, over probate appeals, been challenged.

The Massachusetts cases of Higbee v. Bacon, 11 Pick. 424; Wright v. Wright, 13 Allen 207; McKeone v. Barnes, 108 Mass. 344; Lewis v. Mason, 109 Mass. 169; Nash v. Hunt, 116 Mass. 237; Newell v. Homer, 120 Mass. 277; Davis v. Davis, 123 Mass. 590; May v. Bradlee, 127 Mass. 414; Dorr v. Tremont Nat. Bank, 128 Mass. 349, all depend upon statutes giving right of exception or appeal to the full court.

The counsel further argued against the proponent's motion to set aside the verdict.

APPLETON C. J.

This is an appeal from a decree of the judge of probate, affirming the last will and testament of James Carvill. The case comes before us on a motion to set aside the verdict. The evidence as reported, embraces four hundred and seventeen pages.

No exceptions have been taken to the rulings of the presiding judge as to the admission or exclusion of evidence, or to the principles of law as stated in his charge to the jury.

The jury found that the testator at the time he executed the instrument, purporting to be his last will and testament, was not of sound...