In re Thomson

• Decision Date: 05 April 1899
• Citation: 92 Me. 563,43 A. 511
• Parties: In re THOMSON et al.
• Court: Maine Supreme Court

43 A. 511

92 Me. 563

In re THOMSON et al.

Supreme Judicial Court of Maine.

April 5, 1899.

(Official.)

Exceptions from supreme judicial court, Sagadahoc county.

Application for the probate of the will of Ann E. Darrah was denied, and Mallie C. Thomson and others appeal. Exceptions overruled.

Argued before PETERS, C. J., and EMERY, HASKELL, WISWELL, STROUT, and SAVAGE, JJ.

Chas. D. Newell, for appellants.

Edgar M. Briggs and Wm. T. Hall, Jr., for appellees.

PETERS, C. J. Ann E. Darrah made her will, which was disallowed by the judge of probate for the county of Sagadahoc, for the reason, as expressed in the record, that the judge finds "from the testimony of the subscribing witnesses to said instrument and others that said last will and testament was not the will of said deceased, that it was not legally executed, and that at the time of executing the same the said deceased was of full age."

The legatees who presented the will for probate appealed from the judgment below, assigning for their reasons of appeal that "said will was the last will and testament of said Ann Eliza Darrah, and was duly and legally executed." Objection is taken to the sufficiency of the reasons of appeal in that they do not aver, either in direct or equivalent terms, that the testatrix was of sound mind when she executed such instrument. It appears that in the reasons of appeal, in reciting the terms of the decision below, the judge is made to say that the testatrix was of full age "and sound mind." But the words "and sound mind" do not appear in the text of the written record now presented as a part of the case.

Another objection relied on by the heirs against the legatees is that the bond filed by the latter in support of their appeal does not appear to have been properly approved by the judge below, his indorsement thereon being as follows: "Sagadahoc—ss.: June 25, 1898. Examined, and ordered that this instrument be placed on file. Wm. T. Hall, Judge of Probate." And the register of probate attests that the same was received and filed.

As soon as the appeal was entered in this court, the contestants of the will moved that the appeal be dismissed upon several grounds named in the motion, two of which we have already spoken of, and the sitting justice granted the motion. Exceptions were taken to the ruling ordering the dismissal of the proceedings, which were ordered to be argued in writing, and the arguments forwarded to the chief justice within 60 days. The...