In re Clark
| Decision Date | 06 January 1914 |
| Citation | 111 Me. 399,89 A. 245 |
| Parties | In re CLARK et al. |
| Court | Maine Supreme Court |
Exceptions from Supreme Judicial Court, Washington County, at Law.
Probate proceedings in which Lewis D. Clark and others appeal. From a decree of probate, appellants moved in the supreme court of probate for leave to amend the reasons of appeal, and excepted to a ruling denying such leave. Exceptions dismissed.
Argued before SAVAGE, C. J., and SPEAR, HANSON, and PHILBROOK, JJ.
J. F. Lynch, of Machias, and H. H. Gray, of Milbridge, for plaintiffs.
W. R. Pattengall, of Waterville, and A. D. McFaul, of Machias, for defendant.
This case is an appeal from the allowance by the judge of probate of a certain instrument as the last will and testament of Lewis D. Clark. In the supreme court of probate, the appellant moved for leave to amend his reasons of appeal by striking out the seventh reason, namely: "That on December 1, 1908, the said Lewis D. Clark, by reason of the undue influence of said Andrew Clark, signed conveyances to said Andrew Clark of all his property, both real and personal, whereby and by reason whereof said written instrument was annulled and revoked"—and by substituting in lieu thereof the following, as a reason of appeal: "That on December 1, 1908, the said Lewis D. Clark signed certain writton instruments purporting to convey to the said Andrew Clark all of his property, both real and personal, by reason of which act the written instrument purporting to be the last will and testament of said Lewis D. Clark was thereby revoked." The changes sought by the amendment are an omission of the element of undue influence, and the change of the term "conveyances" to "instruments purporting to convey." The effect of the instruments is more cautiously expressed in the amendment than in the original. The presiding justice declined to allow the amendment, and, to that ruling, exceptions were taken.
Whether amendments, in substance, of reasons of probate appeals are allowable has been mooted in argument in several cases in this state, but never decided. See Thompson, Appellant, 92 Me. 563,43 Atl. 511; Smith v. Chaney, 93 Me. 214, 44 Atl. 897; Abbott, Appellant, 97 Me. 280, 54 Atl. 755. Nor do we need to decide it now. It has many times been held that the allowance of amendments by the trial court, when legally allowable, is a matter of discretion, and that exceptions do not lie to the exercise of the discretion. Clapp v. Balch, 3 Me. (3 Greenl.) 216; Wyman v. Dorr, 3 Me. (3 Greenl.) 187; Foster v. Haines, 13 Me. 307; Carter v. Thompson, 15 Me. 464; Cummings v....
To continue reading
Request your trial
-
Appeal of Garland
... ... Under such an apparently accepted construction of the statute governing probate appeals, without the right to amend the reasons of appeal in substance ever being claimed, so far as the reported cases show, and over a period of more than 70 years, the suggestion in the case of Clark, Appeal of, 111 Me. 399, 89 A. 245, that it was still a "mooted question" carries but little weight, especially as the court expresses no opinion upon the question ... A probate court and the Supreme Court of Probate are statutory courts, and the procedure therein is governed by ... ...
-
Garmong v. Henderson
...of the presiding justice who allowed the amendment. It raises no question of law, and is not open to exceptions. Clark, Applt., 111 Me. 399, 88 Atl. 245. Disregarding for the present any want of sufficiency in the averments in the additional count, and assuming with the contention of the pl......
-
Tuttle v. County Com'rs of Somerset County
... ... Exceptions do not lie to the exercise of discretion in allowing and disallowing amendments. Consolidated Rendering Co. v. Harrington, 114 Me. 394, 66 A. 724; Appeal of Clark, 111 Me. 399, 89 A. 245; Gilman v. Emery, 54 Me. 460. If it be assumed, but not decided, that the motion was timely and the proposed amendment could ... ...
-
Hall. v. Hall
...the amendment. The allowance by the trial court is a matter of discretion, to the exercise of which exceptions do not tie. Appeal of Clark, 111 Me. 399, 89 Atl. 245. V. The defendant was asked by his counsel whether he and his brother Fred, the plaintiff, had hired money for the benefit of ......