McKenney v. Alvord

• Decision Date: 02 March 1882
• Citation: 73 Me. 221
• Parties: ALVAN MCKENNEY and another, appellants from decree of JUDGE OF PROBATE, v. ABIGAIL ALVORD.
• Court: Maine Supreme Court

73 Me. 221

ALVAN MCKENNEY and another, appellants from decree of JUDGE OF PROBATE, v. ABIGAIL ALVORD.

Supreme Judicial Court of Maine.

March 2, 1882

ON MOTION to set aside the verdict.

An appeal from a decree of the judge of probate approving and allowing the will and codicil of Aaron McKenney.

The case is stated in the opinion.

R P. Tapley, for the appellants.

In the trial of causes of this character the judge sits as supreme court of probate. The proceedings before the jury are simply advisory to inform the conscience of the court. Bradstreet v. Bradstreet, 64 Me. 205; Larrabee v. Grant, 70 Me. 79.

The verdict is not to be set aside, it is simply to be disregarded. It is the opinion of twelve men, who heard the case, of more or less value according to the intelligence of the jury, but not binding upon any court. How can it be set aside? Of what utility to undertake the task of setting aside or undoing a nullity?

The power given the court to set aside an act is given as a remedy for some evil which the act works.

There is no authority for substituting an opinion of law court for that of the jury. That is practically what this motion calls for.

The statute nowhere authorizes the law court to withdraw from the judge of supreme court of probate an opinion or finding of a jury rendered at his request to inform his conscience.

H Fairfield and Ayer and Clifford, were also for appellants.

Augustus F. Moulton and Ira T. Drew for the proponents, cited: Bradstreet v. Bradstreet, 64 Me. 204; 2 Story, Equity, § § 1447, 1479, a; Grant v. Larrabee, 70 Me. 79; R. S., c. 63, § 21; Higbee v. Bacon, 11 Pick. 423; Barnes v. Barnes, 66 Me. 286; Robinson v. Adams, 62 Me. 369; Small v. Small, 4 Me. 220.

BARROWS J.

On the fifth day of January, 1878, Aaron McKenney, a childless widower, at that time more than one hundred years old, executed a will revoking previous testamentary dispositions of several parcels of real estate in favor of certain of his kindred and friends, and devising to Abigail Alvord, his housekeeper, the appellee, his homestead farm with the buildings thereon, including the Haines field of five acres, more or less, and all the stock, farming utensils and tools, furniture and household goods, with the exception of one clock; also the Libby farm, near the Heath meeting-house in Saco; and appointing said Abigail Alvord executrix of the will, with a request to the judge of probate that no bond be required of her. Some time afterwards the plain one story farm house in which he had lived for many years was consumed by fire; and in his one hundred and second year he (or those who had the management of his affairs) proceeded to erect upon the homestead farm, thus devised to his housekeeper, a somewhat costly dwelling house after the modern style. Some of his kindred and expectant heirs instituted proceedings in probate court for the appointment of a guardian for him, and upon inquisition made, the municipal officers of Saco, June 2, 1879, certified to the judge of probate their opinion that he was " of unsound mind and incompetent to manage his own estate or protect his rights thereto," and upon notice issued from the probate court and hearing had, the probate judge so decreed, on the first Tuesday of August, 1879, and appointed a guardian to whom letters of guardianship were issued. The attorney who appeared for Aaron McKenney before the probate court, took an appeal from the decree of the probate judge, which was pending at the time of McKenney's death in February, 1880. But in August, 1879, shortly after the decree of guardianship in the probate court, he had executed a codicil to his will in which he says, " I hereby will and direct that my relations and heirs, except Aaron McKenney of Buxton and Charles W. McKenney of Hollis, shall have no part of my property. With the exception of said Aaron and Charles they have nearly all acted as enemies to me, or have given me no proof of their friendship or sympathy." Whereupon he devises to his grand-nephew, Charles, a ten acre wood lot in Buxton, to be received by Charles in satisfaction of what the testator owed him; and as he says his nephew Aaron " has a good property of his own, I therefore leave him only an expression of my grateful feelings for his kindness to me." It is noticeable that he makes no exception in favor of those of his kindred who took no part in the petition for guardianship or those who signed his remonstrance against it; but hereupon devises all the remainder of his property, real and personal, to his housekeeper, Abigail Alvord, a woman already past seventy years of age, to whom, in the will, he had previously given the homestead and the Libby farm.

Some of the heirs at law appealed from the decree of the judge of probate approving and allowing these instruments, and, upon issues framed in the Supreme Judicial Court, the jury at the January term, 1881, found that at the time of executing the will in January, 1878, the testator was of sound mind and not unduly influenced by Abigail Alvord or any other person; but that at the time of executing the instrument purporting to be a codicil in August, 1879, he was not of sound mind and was under undue influence. Thereupon the executrix of the will, who is the principal devisee, moves to set aside the findings respecting the codicil as against law and evidence, and presents the case here upon that motion and a report of the evidence certified by the presiding justice, with the proviso that if the moving parties are entitled to have the consideration of the full court upon such a motion against objection interposed by the other side, the full court is to pass upon the...