Lane v. Hill

• Citation: 68 N.H. 275,44 A. 393
• Parties: LANE v. HILL.
• Decision Date: 26 July 1895
• Court: Supreme Court of New Hampshire

44 A. 393

68 N.H. 275

LANE

v. HILL.

Supreme Court of New Hampshire. Rockingham.

July 26, 1895.

Appeal from probate court, Rockingham county.

Issue on appeal from probate of will of George W. Lane, between Lane, executrix, and Hill. Case discharged.

Three issues were presented at the trial: (1) That the will probated and allowed by the probate court was not the last will and testament of George W. Lane; (2) that the will was not signed by George W. Lane, nor by any person in his presence, and by his express direction; (3) that the instrument was not attested and subscribed in his presence, and at his request, by three credible witnesses. On the first issue the jury were unable to agree. On the second and third issues they returned a verdict in favor of the plaintiff. The testimony of Jennie Felch, called by the defendant, tended to show that subsequently to the date of the will offered for probate the testator executed a will, to which she was one witness, and her deceased husband, Fred R. Felch, by whom it was written, was a second. There was a third witness, whose name she was unable to state. The evidence did not disclose the name of the third witness, the contents of the second will, Its existence at the time of the testator's decease, or whether it revoked the first will. The defendant offered to show, and excepted to the exclusion of, the testator's declarations, made a few months before his death, that he had made a will, written by Fred R. Felch, in which he had provided well for his wife, and had given the farm and some money to his daughter. The will offered for probate gave all the testator's property to his wife, and was written by Jesse B. Pattee. The plaintiff moved for judgment on the verdict establishing the will on the second and third issues on the grounds: (1) That all the evidence introduced and offered by the defendant to prove the existence and due execution of a second will revoking the first was insufficient in law for that purpose; and (2) if a second will was made, which revoked the first, its existence at the date of the testator's death must be shown.

Greenleaf K. Bartlett and Henry B. Atherton, for plaintiff.

Eastman, Young & O'Neill, for defendant.

PARSONS, J. Three Issues were submitted to the jury. Upon two the jury found for the plaintiff, in substance, that the will was duly executed by the testator, George W. Lane. To this verdict, and the evidence upon which it is founded, there is no exception. Upon the first issue—that the will probated and allowed by the probate court was not the last will and testament of George W. Lane—the jury were unable to agree. The plaintiff moves for judgment on the ground that all evidence introduced and offered by the defendant to prove this issue was insufficient in law for that purpose. If the first issue is understood as submitting to the jury for their finding merely the question whether, after the execution of the will propounded, the testator had executed another will, the issue is an Immaterial one. "A subsequent will does not revoke a former one unless it contains a clause of revocation, or is inconsistent with it. And where it is inconsistent with the former will in some of its provisions merely, it is only a revocation pro tanto. Brant v. Willson, 8 Cow. 56. Where a subsequent will is made, and there is no proof that it contained any clause revoking a former will,—as in cases where the contents of the last will cannot be ascertained,—it is not a revocation of the former will. This was decided by the court of king's bench in England, more than 150 years since, in he case of Hutchins v. Basset, Comb. 90, 3 Mod. 203; and that decision was subsequently affirmed upon a writ of error in the house of lords. See Hungerford v. Nosworthy, Show. 146. In the subsequent case of Harwood v. Goodright, Cowp. 87, which came before the court of king's bench in 1774, it was held that a former will was not revoked by a subsequent one, the contents of which could not be ascertained; although it was found by a special verdict that the disposition which the testator made of his property by the last will was different from that made by the first will, but in what particulars the jurors could not ascertain. This case was also carried to the house of lords upon a writ of error, and the judgment of the court of king's bench was affirmed. As these two decisions of the court of dernier ressort in England were previous to the Revolution, they conclusively settle the law on the subject here." Nelson v. AfcGiffert, 3 Barb. Ch. 158, 164. 165; 1 Redf. Wills (1st Ed.) 350; 1 Jarm. Wills, 338 (*172); Pickens v. Davis, 134 Mass. 252. A verdict of the jury, therefore, establishing as a fact that the testator executed another will after the execution of the will from whose probate the appeal was taken, without more, would not defeat the executor's right to a judgment establishing this will. She would be, therefore, equally entitled to such judgment where no verdict has been rendered. Her right to a judgment would not be defeated by the failure of the Jury to render any verdict, when a verdict against her would not have that effect. On an appeal from the probate court, "if any fact material to the cause be disputed, the court may direct an issue proper to try such fact to be framed, and ascertain the same by the verdict of a jury." Pub. St. c. 200, § 11. The first issue in this case is objectionable in that it does not clearly submit some particular question of fact to the jury. The judgment to be rendered is whether the instrument propounded is or is not the last will and testament of the deceased. The issue framed in this case apparently submits the whole question to the jury, whereas the issue should require the determination of some fact, the existence or nonexistence of which is material upon the legal question whether the disputed paper is or is not the last will of the deceased. Rules of Court, p. 31 (56 N.H. 601). In making the issue, the executors move that the will be proved and allowed as and for the last will and testament, etc. This motion is addressed to the court, not the jury. The objecting party then sets up any facts which are the grounds of his claim that the instrument is not the last will, etc. If the facts are material,—that is, facts from which, if established, it would follow as matter of law that the instrument is not the testator's last will,—an issue is awarded him, and judgment rendered as the fact is found. But the whole question is not properly to be thrown to the jury in this manner. Dudley v. Wardner's Ex'rs, 41 Vt. 59. The parties in the present case, however, appear to have treated the issue as if it had been that since the execution of this instrument the testator duly executed another will, by the terms of which the first was revoked; or, more briefly, that the will was revoked by the testator in his lifetime. Upon this issue no will was produced. There was evidence, however, tending to show the execution of another will, but no evidence was admitted in the case of the contents of the second will. There being no evidence in the ease that Lane had executed a subsequent will revoking in terms or by its inconsistent provisions the will whose validity was litigated, there was nothing to submit to the jury upon the first issue, considering it as the parties appear to have treated it. Upon motion of the plaintiff, made before the case was submitted to the jury, that issue would have been withdrawn; but, having suffered the case to go to the jury upon this issue without objection, her motion comes too late after the failure to find a verdict. Baldwin v. Wentworth, 67 N.H. 408, 36 Atl. 365; Haydock v. Salvage, 67 N.H. 598, 38 Atl. 207. Had the motion been seasonably made, and the defendant's attention thereby called to the lack of evidence, it might have been that justice would have rendered it necessary that the case should have been reopened to allow the defendant to supply any missing testimony. However that may be, the plaintiff allowed the case to be submitted to the jury without objection to the want of evidence; and, the jury having rendered no verdict, the question of revocation, when the issue is properly framed, is still undetermined, and there can be no judgment either way until the question of fact is settled. There is no occasion for the defendant's motion for a new trial. Until the issue is decided, she is entitled to as many trials as may be necessary, assuming that upon a new trial sufficient evidence will be offered to warrant a verdict by the jury.

Evidence of declarations of the testator that he had made a second will, and as to its contents, was offered and excluded. The plaintiff claims that all the evidence introduced and offered by the defendant to prove the existence and due execution of a will revoking the first will was insufficient for that purpose. If it were conceded that the case contains all the evidence that can be adduced upon these questions, we might, treating the statement as an agreed ease, pass thereon; but, in view of the fact that the defendant claims to have additional evidence to introduce upon a subsequent trial, it does not seem advisable to consider this question until the evidence is all before us. The question of the admissibility of the testator's declarations that he had made a second will, and as to its contents, will arise at another trial, and we have considered it. The testimony of Mrs. Felch, as stated in the case, "tended to show the execution of a will by the testator of a subsequent date to the one offered for probate, to which she was one witness, her husband, Fred R. Felch, now deceased, who wrote the will, was a second, and there was a third witness, whom she did not remember." This evidence would seem to be sufficient, prima...