King v. Holmes

• Decision Date: 02 February 1892
• Citation: 84 Me. 219,24 A. 819
• Parties: KING v. HOLMES et al.
• Court: Maine Supreme Court

24 A. 819

84 Me. 219

KING

v. HOLMES et al.

Supreme Judicial Court of Maine.

Feb. 2, 1892.

(Official.)

Appeal from supreme judicial court, Oxford county.

Proceeding by George F. Holmes and another, executors under the will of Ebenezer R. Holmes, deceased, for the admission of said will to probate. From a decree admitting the same to probate, Florence H. King appeals. Affirmed.

J. S. Wright and J. P. Swasey, for appellant.

George D. Bisbee and Richard Webb, for appellees.

HASKELL, J. Two questions were raised at nisi prius: Was the testator of sound mind, and was his supposed will obtained by undue and improper influences? The verdict finds he was of sound mind, and negatives all undue and improper influence.

At the trial the presiding justice stated that, in his opinion, no other verdict could properly be rendered; and thereupon the above verdict was taken upon stipulation by the parties, in substance, that any evidence shown to have been illegally excluded shall be considered by the law court, together with that admitted, and, if the verdict shall then appear to be wrong, a new trial shall be granted. In other words, the case substantially comes up on report of the full evidence. This view is strengthened by the consideration that probate appeals are conducted under the rules of equity practice, the verdict being advisory only in settling the final decree. It may be disregarded when the justice of a case so requires, although the usual practice in probate appeals in this state may be to order a retrial of the issues framed for the jury. Shailer v. Burastead, 99 Mass. 131; Bradstreet v. Bradstreet, 64 Me. 204; Larrabee v. Grant, 70 Me. 79; McKenney v. Alvord, 73 Me. 221; Association v. Parks, 81 Me. 79, 16 Atl. Rep. 339.

The evidence shows that the testator left a widow 84 years of age, and three sons, and two daughters, Florence and Louise. The eldest son and daughter were unmarried, and lived at home with their parents on a farm. George was a lawyer in Portland, and Walter, the youngest sou, and Florence, the youngest child, and wife of a Mr. King, lived at Welchville, about three miles from their father's home. In 1880, Walter and Mr. King became partners in a general store at Welchville, and the evidence tends to show that the testator furnished some capital in the store enterprise, in aid of his children, by loan or otherwise. In April, 1888, before the will was made the following August, the partnership between Walter and King was dissolved, and legal controversies arose between them, George being the counsel of Walter and the confidential adviser of his father.

At the trial the appellant, Florence, called her brother Lyman as a witness, and put to him the following question that was excluded, viz.: "Did you hear George say anything to any member of your family about what he would do, or any threat that he made against Mr. King and Florence, or either of them?"

Threats by a person charged with obtaining a will by undue influence have sometimes been admitted in evidence as showing motive for conduct that may have operated to compel the making of a will, or more frequently, perhaps, may have prevented an opportunity for changing a will already procured. Much must be left to the judgment of the presiding justice in determining whether the supposed threats in such cases are counected with or relate to the subject-matter of the issue on trial; and especially so when the answer sought, if responsive, cannot; be presumed to be material evidence. Upon this ground the question put may well have been excluded, especially as it was known that the speaker of the supposed threats, from infirmity, could not testify, when, perhaps, the context might completely change the meaning of the language attributed to him, and leave it harmless for any purpose.

But, assuming that the answer would have been as stated by counsel at the time the question was put, the appellant is not aggrieved, inasmuch as the supposed threat, "I have injured you and Florence a good deal already, and father will do what I want him to,—just as I say," together with one of weaker import, sought to be proved by King, could not, even with the aid of all the other evidence excluded, have changed the verdict. At most, they show vexation and hostility from George towards King and Florence, arising out of a lawsuit between Walter and King concerning partnership matters, wherein the testator may have had some pecuniary interest, and may fairly be construed to mean no more than that the testator, in the settlement of those matters, would follow the advice of his trusted son and confidential adviser. Nothing was said about a will, and the supposed threats cannot be said to refer to that subject, in the absence of evidence showing conduct that can be even distorted into undue or improper influence upon the testator.

The appellant offered to prove by Sheriff Wormell, who...