Newell v. Charles Homer
Decision Date | 05 May 1876 |
Citation | 120 Mass. 277 |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Parties | Anna Newell v. Charles Homer & others |
[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:
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:
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.
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 continue reading
Request your trial-
Berkey v. Delia
...the proof must be "strong, positive and free from doubt" (Coghlin v. White, supra, at 55, 172 N.E. at 786, quoting from Newell v. Homer, 120 Mass. 277, 280 (1876)), and "full, clear and decisive" (Kidder v. Greenman, (283 Mass. 601), 613, (187 N.E. 42 (1933),) and cases cited). See generall......
-
Rubenstein v. Royal Ins. Co. of America, 98-P-1650
...likelihood that fraud or wrongdoing existed. See Coghlin v. White, 273 Mass. 53, 55, 172 N.E. 786 (1930), quoting from Newell v. Homer, 120 Mass. 277, 280 (1876) (proof of contents of a will must be "strong, positive and free from doubt"); Stone v. Essex County Newspapers, Inc., 367 Mass. 8......
-
Cole v. Mcclure
... ... must be strong, positive and convincing. Southworth V. Adams, ... 11 Biss., 256; Newell V. Homer, 120 Mass. 277; In re ... Johnson's Will, 40 Conn. 587; Davis et al v. Sigourney, 8 ... ...
-
JWilliams v. Miles
...in time, would appear inconsistent. Southworth v. Adams, 11 Biss. 256, F. Cas. No. 13,194; Grant v. Grant, 1 Sandf. Ch. 235; Newell v. Homer, 120 Mass. 277. In analogous cases, where a deed absolute is sought to be proved a mortgage, or a deed is sought to be reformed, or a trust establishe......