Newell v. Charles Homer

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Colt, J.
• Citation: Newell v. Charles Homer, 120 Mass. 277 (Mass. 1876)
• Decision Date: 05 May 1876
• Parties: Anna Newell v. Charles Homer & others

120 Mass. 277

Anna Newell v. Charles Homer & others

Supreme Court of Massachusetts

May 5, 1876

[Syllabus Material]

Suffolk. Appeal from a decree of the Judge of Probate refusing to approve and allow certain instruments alleged to be copies of the last will, and of three codicils thereto, of William H. Bordman, the original will and codicils being alleged to have been lost, suppressed or destroyed since the death of the testator.

In this court, the following issues of fact were framed for the jury:

"1. Whereas the said appellant affirms and said respondents deny that the said Bordman deceased leaving a will duly executed, of which the paper annexed to or embodied in the appellant's petition is a true copy:

"2. And whereas the said appellant affirms and said respondents deny that said will was concealed, suppressed or destroyed by the respondents, or by some of the heirs at law of said deceased, or by Frederic O. Prince, or some one else acting in their behalf:

"3. And whereas said appellant affirms and said respondents deny that said Bordman deceased leaving a codicil duly executed by him, of which the paper marked B, annexed to said petition, is a true copy:

"4. And whereas the said appellant affirms and said respondents deny that said codicil was concealed, suppressed or destroyed by the respondents, or by some of the heirs at law of said Bordman, deceased, or by Frederic O. Prince, or by some one else acting in their behalf:

"5. And whereas said appellant affirms and said respondents deny that said Bordman deceased leaving a codicil duly executed by him, of which the paper marked C, annexed to or embodied in the appellant's petition, is a true copy:

"6. And whereas the said appellant affirms and said respondents deny that the said codicil was concealed, suppressed or destroyed by the respondents, or by some of the heirs at law of said deceased, or by Frederic O. Prince, or by some one else acting in their behalf:

"7. And whereas the said appellant affirms and said respondents deny that the said Bordman deceased leaving a codicil duly executed by him, of which the paper marked D, annexed to or embodied in the appellant's petition, is a true copy:

"8. And whereas the said appellant affirms and said respondents deny that the said codicil was concealed, suppressed or destroyed by the respondents, or by some of the heirs at law of said Bordman, deceased, or by Frederic O. Prince, or by some one else acting in their behalf:

"And whereas the said respondents affirm and the said appellant denies that if the said Bordman did decease leaving any such codicil as is alleged in the appellant's petition, he, at the time of executing the same, was not of sound mind:

"Now, therefore, it is ordered that a jury be empaneled to try said issues."

The appellant requested that further issues be framed, so much of which as were not substantially the same as those submitted to the jury were as follows:

"Did the will of William H. Bordman, executed in the presence of Stedman, Mills and Thayer, contain a bequest to Anna Tilton, now Anna Newell, this petitioner, of an annuity of eighteen hundred dollars a year during her lifetime, the same to be paid to her by his executors?

"Did William H. Bordman, by a codicil made to his last will and testament, executed in the presence of Cushing, Brooks and Prince, on or about the thirteenth day of March, 1872, give and devise to Anna Newell, this petitioner, the house on Mount Vernon Street in the city of Boston, then owned by said Bordman, to have and to hold the same to her sole and separate use, free from the control of her husband, and to her heirs and assigns forever?

"Did William H. Bordman, by a codicil made to his last will and testament, executed in the presence of Cushing, Brooks and Prince, on or about the thirteenth day of March, 1872, give and devise the sum of five hundred thousand dollars, to be applied to the establishment and support of an institution in the form of a home for the benefit of the working women of Boston, and charge Anna Newell, this petitioner, with the trust and duty of carrying out the same in her sole judgment and discretion, recommending her to seek the advice of Henry C. Brooks in respect to the same?

"Did said Bordman, by a codicil to his last will and testament, executed in the presence of Cushing, Brooks and Prince, on or about the thirteenth day of March, 1872, give and bequeath the remainder of his estate, both real and personal, to Anna Newell, this petitioner, and to her heirs and assigns forever, free from the control of her husband?

"Specify each and every one of the legacies, bequests, gifts, grants and devises which you find to have been made and contained in the last will and testament made and left by said Bordman, and in the codicils thereto."

Devens, J., refused to submit these questions to the jury, and the appellant excepted. The case was then tried, and at the close of the appellant's evidence the judge directed the jury to return a verdict for the appellees. The issues submitted were answered in the negative; and the appellant alleged exceptions, the substance of which appear in the opinion.

Exceptions overruled.

J. F. Pickering, for the appellant.

E. D. Sohier & C. A. Welch, for the appellees.

Colt, J. Gray, C. J., did not sit. Devens, J., absent.

OPINION

Colt, J.

This is an appeal from the refusal of the Probate Court to allow the probate of a lost will and three codicils to it, copies of which are annexed to the original petition, and which are alleged to have been lost, suppressed or destroyed, since the death of the testator.

The burden is on the appellant to prove the execution of these testamentary papers, and to establish their contents by evidence strong, positive and free from doubt. Davis v. Sigourney, 8 Met. 487. Durfee v. Durfee, 8 Met. 490, note. It must appear also, upon the allegations made in this petition, that the instruments were in existence uncancelled and unrevoked, at the time of the death of the testator, in order to control the presumption of revocation, which always arises when a will once known to exist is not found at the death. Davis v. Sigourney, ubi supra. 3 Redfield on Wills, 15. Brown v. Brown, 8 El. & Bl. 876, 886. Idley v. Bowen, 11 Wend. 227. Eckersley v. Platt, L. R. 1 P. & D. 281. Finch v. Finch, L. R. 1 P. & D. 371.

In the present case, issues to the jury were framed in advance of the trial, under that provision of the statute which declares that this court, as the Supreme Court of Probate, may submit to a jury any question of fact proper for such trial, upon an issue framed under the direction of the court. Gen. Sts c. 117, § 18. When the trial came on, the appellant requested a modification of and certain additions to the issues framed, and excepted to the refusal of the presiding judge to...