Merrill Trust Co. v. Hartford

• Decision Date: 22 December 1908
• Parties: MERRILL TRUST CO. v. HARTFORD.
• Court: Maine Supreme Court

72 A. 745

104 Me. 666

MERRILL TRUST CO.

v. HARTFORD.

Supreme Judicial Court of Maine.

Dec. 22, 1908.

(Official.)

Report from Supreme Judicial Court, Hancock County.

Hattie M. Hartford presented to the probate court a petition for the annulment of a probate decree allowing an instrument as the will of Frankie M. Jordan. From a decree annulling the probate, the Merrill Trust Company, executor of the will of Andrew J. Jordan, appealed to the supreme court of probate, where a hearing was had, and at the conclusion of the evidence the cause was withdrawn from the jury and reported to the law court. Remitted to the supreme court of probate for decree according to the opinion.

Mrs. Frankie M. Jordan, late of Orland, in said county, died December 7, 1897, leaving an instrument purporting to be her last will and testament, and in which her husband, Andrew J. Jordan, was named as sole executor, and also as the residuary legatee. This instrument was duly presented by the said Andrew J. Jordan for probate, and at the February term, 1898, of the probate court in said county, was allowed as the last will and testament of the deceased, and letters testamentary were issued to the said Andrew J. Jordan as executor thereof.

The said Andrew J. Jordan died January G, 1907, leaving a will in which the Merrill Trust Company, a corporation, was named as the executor, and also creating a certain trust and naming the said Merrill Trust Company as the trustee. This will was duly probated and allowed at the March term, 1907, of the aforesaid probate court, and letters testamentary were issued to the said Merrill Trust company as executor thereof.

At the December term, 1907, of the aforesaid probate court, Hattie M. Hartford, an heir at law of the aforesaid Frankie M. Jordan, presented to the aforesaid probate court a petition praying for annulment of the probate decree, whereby the first aforesaid instrument purporting to be the last will and testament of the said Frankie M. Jordan was allowed as her last will and testament, alleging in her said petition as follows:

"That said Frankie M. Jordan at the time of the alleged making of said instrument was of unsound mind.

"That said alleged will was not signed by said Frankie M. Jordan or by any person for her at her request and in her presence.

"That said alleged will was not subscribed in her presence by three credible attesting witnesses not beneficially interested under said alleged will.

"That none of the witnesses to said alleged will signed the same in the presence of said Frankie M. Jordan.

"That said Frankie M. Jordan never declared in the presence of said witnesses that said instrument was her will.

"That it appears by said alleged will that there are four witnesses. One witness signed her name to said alleged will in two forms, to wit, Mrs. F. Marks and Louise F. Marks.

"That one of said witnesses to said alleged will was beneficially interested under said alleged will and was named in said alleged will as legatee, to wit, Louise F. Marks.

"That at the time of the signing and witnessing said alleged will only that portion containing the signatures was present and signed.

"That the witnessing of said alleged will was done downstairs in the sitting room of the house where said Frankie M. Jordan then lived and the said Frankie M. Jordan at the time was upstairs from said witnesses in bed, and neither in the presence or hearing of said witnesses, and the said Frankie M. Jordan had no knowledge of the witnessing of said instrument.

"That the testimony before the probate court for said county of Hancock to prove said alleged will was that of Mrs. Lizzie Gott, one of the witnesses to said alleged will. Said evidence was taken before the judge of probate in vacation.

"That said judge of probate says that the witness Mrs. Lizzie Gott testified that Mrs. F. Marks and Louise Marks were two separate and distinct persons, and that said alleged will was signed in the presence of said Frankie M. Jordan by said witnesses and in the presence of each other, and the said Mrs. Lizzie Gott says she did not so testify, and was not asked to so testify.

"That your petitioner was a legatee under said alleged will. That all that your petitioner received under said will was $200 in money. That your petitioner now brings the same amount of money, to wit, $200, into this court.

"That Andrew J. Jordan was the executor named in said alleged will. That Andrew J. Jordan was the husband of the said Frankie M. Jordan. That said alleged will was in the handwriting of the said Andrew J. Jordan, and the said Andrew J. Jordan was the principal legatee named in said alleged will. That undue influence was used upon the said Frankie M. Jordan to induce her to sign said instrument purporting to be a will. That the signing of said instrument purporting to be the last will and testament of said Frankie M. Jordan was obtained by fraud. That the execution and witnessing of said instrument purporting to be the last will and testament of said Frankie M. Jordan was obtained by fraud, collusion, accident, or mistake. That the probating of said instrument purporting to be the last will and testament of said Frankie M. Jordan was obtained by collusion, accident, mistake, and fraud. That the decree admitting said instrument of said Frankie M. Jordan to probate was obtained by fraud. That the said decree admitting said instrument to probate was null and void. That the ground upon which this petitioner asks the court to grant her prayer is that the evidence of the fraud, accident, and mistake and other irregularities in this petition alleged as to the making, signing, and probating of said instrument purporting to be the last will and testament of the said Frankie M. Jordan has recently been discovered by your petitioner, and that said evidence could never have been known to her before."

A hearing was had on the aforesaid petition and the judge of probate made the following decree:

"Upon the foregoing petition, notice thereon having been given to all persons interested pursuant to law and the order of court, and a hearing having been had and the evidence presented at said hearing and the arguments of counsel there made having been fully considered, and it appearing that the allegations of said petition are true, and that there was fraud in the making, signing, witnessing, and probating the instrument mentioned in said petition, and which the probate court for said Hancock county by its decree dated the 1st day of February, A. D. 1898, approved and allowed as the last will and testament of F. M. Jordan, and it further appearing that the petitioner has returned into this court two hundred dollars ($200), which by her testimony was all the money or property received by her as a legatee named in the instrument above referred to, and it further appearing that said petitioner is not guilty of laches in presenting the foregoing petition.

"It is ordered, adjudged, and decreed that said decree of this court rendered on the 1st day of February, A. D. 1898, be, and the same is hereby, revoked, annulled, vacated, and declared void and said instrument is declared not to be the will and testament of said F. M. Jordan, to wit, Frankie M. Jordan."

From this decree the said Merrill Trust Company appealed to the Supreme Judicial Court in said county sitting as the supreme court of probate. A hearing was then had in the supreme court of probate, and at the conclusion of the evidence the case was withdrawn from the jury and reported to the law court for decision, with the stipulation that upon so much of the evidence as was legally admissible the law court should render such judgment as the rights of the parties required.

The case is stated in the opinion.

Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, PEABODY, SPEAR, and BIRD, JJ.

O. P. Cunningham, F. H. Appleton, and John A. Peters, for plaintiff. Oscar F. Fellows, for defendant.

EMERY, C. J. The case is this: After the death of Mrs. Frankie M. Jordan of Orland, Hancock county, her husband, Andrew J. Jordan, presented to the probate court for that county at the January term, 1898, an instrument purporting to be the last will of his deceased wife, with a petition that it be probated and allowed as such. After due notice, the probate court at the next February term by decree allowed and probated the instrument as the last will of Mrs Frankie M. Jordan, deceased. Letters testamentary were issued to Andrew J. Jordan named in said instrument as executor and also named as residuary legatee.

At the December term, 1907, of the probate court, and after the death of Andrew J. Jordan, Hattie M. Hartford, an heir of Mrs. Jordan, presented to the court a petition for annulment of the probate decree of the February term, 1898, allowing as the will of Mrs. Jordan the instrument presented as above stated by Mr. Jordan. In this petition the petitioner alleged, among other matters, that the instrument was not signed by Mrs. Jordan nor by any one for her at her request; that the instrument was not signed by three credible witnesses not beneficially interested; that none of the witnesses to the instrument signed or attested it in the presence of Mrs. Jordan; that Mrs. Jordan had no knowledge of the witnessing of the instrument; that, while four names appear on the instrument as witnesses, there were in fact only three persons subscribing, one of whom was beneficially interested and subscribed a second time under another name; that the only evidence to support the probate of the instrument was the testimony of one of the subscribing witnesses, Mrs. Gott, given, not in court during term time, but to the judge in vacation. After due public notice and personal notice to the appellant, the Merrill Trust Company, the executor of the will of Andrew J. Jordan, the matter of the petition was heard at the next January term, 1908, and the probate court passed a decree in which it declared...