Kaul v. Brown

• Decision Date: 29 April 1890
• Citation: 20 A. 10,17 R.I. 14
• Parties: KAUL et al. v. BROWN et al.
• Court: Rhode Island Supreme Court

20 A. 10

17 R.I. 14

KAUL et al.

v. BROWN et al.

Supreme Court of Rhode Island.

April 29, 1890.

Appeal from probate court of Newport.

Nicholas Van Slyck and Patrick Galvin, for appellants. William P. Sheffield and Francis B. Peckham, for appellees.

DURFEE, C. J. This is an appeal from a decree of the court of probate of Newport admitting the will of John G. Stacy to probate. A trial to the jury in this court resulted in a verdict sustaining the will. The appellants petition for a new trial on three grounds, to-wit: First, because the verdict is against the evidence; second, because of newly-discovered evidence; third, because two of the jurors misbehaved. The case is before us on this petition.

The will was executed in due form. The testator was of sane mind, though weakened by illness, when he executed it. The claim is that it was procured by undue influence in favor of certain legatees and devisees not akin to him. Two of these were Lewis Brown and John Howard, intimate personal and business friends of the testator, who died unmarried; a third was John Stacy Brown, son of said Lewis, and namesake of the testator; and the fourth, Lewis Brown, Jr., likewise a son of said Lewis, to whom the will gave a legacy of $500. Lewis Brown and John Howard were appointed executors, to act without compensation. The estate was large, and, notwithstanding the gifts of said four persons, there was enough of it left to enable the testator to provide liberally for his kindred. We cannot say that the will appears on its face to be either unreasonable or in officious. There is no direct proof of the exercise of any influence to procure it. It was in evidence, however, that the testator had been frequently heard to say that the law made the best will, or that the law made a good enough will for him; that said John Howard and Lewis Brown, or others friendly to them, had exhibited a desire to have him make a will, and had opportunities to influence him; and that the inference was that the will was the product of their influence. The will, however, departs from the disposition which the law would have made of the estate, not only in said gifts, but also in its provisions for the kindred, and in this respect bears the marks of careful deliberation and design. The testator lived a year and nine months after making the will, recovering in a great degree from his illness, and had ample opportunity to revoke or change it, if any advantage had been taken of his weakness to procure it. It seems to us that the verdict is according to the evidence, and that there would be more reason for setting it aside if it were the other way. We do not think the newly-discovered testimony, which is mainly cumulative, affords any sufficient ground for anew trial.

The two jurors charged with misbehaving are Benjamin W. H. Peckham and Stephen P. Durfee. The appellants submitted in support of the charge the affidavit of one Willard F. Sherman, who kept a lunch-room in Newport, to which said jurors resorted for lunch. He deposes that they there discussed the evidence and merits of the Stacy will case while it was on trial, and while the testimony was going in; and that Peckham, who spoke at the greater length, "stated that he was in favor of sustaining said will, and that he would vote to sustain said will. His manner was positive and emphatic, and his manner indicated a strong determination." The affiant further deposes that Durfee afterwards said to him that Peckham was indiscreet in making the statement; that he (Durfee) did not think it was right, and for this reason did not say much. Said Peckham's affidavit has been taken in reply. Hedenies utterly having discussed the evidence or the merits of the case, or having made statements, as declared in Sherman's affidavit. Durfee's affidavit has not been taken, and presumably, therefore, would not corroborate Peckham's if taken. Assuming that Sherman's affidavit is fairly correct, ought we to grant a new trial? The question is grave; for Peckham's conduct, on such an assumption, was very reprehensible. The mischief of such expressions is that they tend to commit the mind of the juror uttering them to a foregone conclusion. Nevertheless, they are not always regarded as sufficient ground for new trial. In the following cases...