Ex parte Henry , 24 Ala. 638 ( 1854 )

CHILTON, C. J.

The counsel for the motion, being dissatisfied with the opinion expressed at the last term of this court, filed his application for a re-hearing ; and not having time to give it that examination which the importance of the case and the principle involved demanded (the application having been made on the eve of the adjournment of the court), we deemed it best to set aside the judgment, and hold the case under advisement, to afford us an opportunity for a more thorough investigation.

We. have accordingly looked into the authorities cited, and many others not brought to our notice by the counsel; and the result of our investigation has but the more confirmed us in the correctness of the conclusion at which we previously arrived.

We are satisfied that the facts of the case presented by the record, accompanying the motion, do not justify us in granting the relief prayed for: The statute under which this contest originated, reads as follows: “ When the validity of any will shall be contested, or doubts may arise as to its validity, or as to any facts, which, in the opinion of the judge, it may be necessary to have ascertained by the verdict of a jury, before awarding any order, judgment, or decree, such judge, at any stated session, or on any sitting held in vacation, according to the provisions of this act, may forthwith cause a jury to be summoned and empannelled, to try such issues, or inquire of such facts, as, under his direction, shall be submitted to their decision, and shall cause them to be sworn in such form as the case may require.” Clay’s Digest 304 § 35.

It is manifest from the reading of this section, that the Legislature designed to vest in the court trying the validity of a will, a more enlarged discretion than is ordinarily exercised by courts in trying issues in civil causes. The issues, in ordinary cases, are educed by the pleadings of the respective parties ; but in cases of wills, they are to be made up under the direction of the probate judge. If, in the opinion of the judge, it is necessary to have any fact ascertained, as preliminary to admitting the will to probate, this section of the act gives him the right to have the verdict of a jury upon that fact.

The pleadings in this case are not made out in form ; but it was agreed, that the proponent should be regarded as tendering a formal issue, that “the paper propounded is the last will and testament of Edward Henry, deceased, and that the same is valid as such last will and testament” ; and the contestants, by agreement, were “to be permitted to offer evidence to the three following points, as though the same had been legally and duly presented at length and in proper form, namely : That said paper is invalid as the last will and testament of Edward Henry, deceased; first, because the same was not signed by the subscribing witnesses thereto in the presence of the testator, Edward Henry ; second, because, at the time of making said last will and testament, said Edward Henry was of unsound mind and memory; and, third, because said paper was obtained by fraud and undue influence on the part of Angelina Henry, wife of the said Edward Henry. And it was further agreed, that said contestants might be permitted to present each and all of these points in the charge of the court to the jury,” &c.

Such is the form in which the issues were presented. Now, without attempting to determine upon the legal effect of this will, since upon this motion it would not be proper to construe it, we entertain no doubt, that a will may be good as to the personalty, and void as to the realty. The statute requiring the subscribing witnesses to sign the will in the presence of the testator, applies only to devises of real estate, and has no application to bequests of personal property; so that the first ground of objection might be true, and yet the will be valid as to the personal property, if it was really intended by the testator to operate as his will, irrespective of the attestation.

"We fully concede the doctrine, that where a will, both of real and personal property, contains an attestation clause, unexecuted by the witnesses, the presumption is, that it was left incomplete, and is not the will of the supposed testator. But this presumption is slight, and may be rebutted by slight circumstances ; as if the testator was prevented from finishing it by the act of God, or that he intended it to operate in its present form.' — See 2 Phil. 178 ; 1 Add. Rep. 158 ; 1 Hagg. 252 ; ib. 551; ib. 596; ib. 698; 3 ib. 207. So, also, in Buckle v. Buckle, 3 Phill. Rep. 323, the testamentary paper was found sealed up at the death of the testator, with an appearance that he did not intend to open it: held sufficient to rebut the presumption of its invalidity as a testamentary paper. So, also, if he recognize it as his will.—1 Hagg. 550; 1 Williams on Ex’rs 51-2, marg. Especially would this presumption be rebutted, if the testator, in his last illness, had signed it as his will, and called upon witnesses to attest it as such, who attested it informally. In such case, it is our opinion, that it would devolve on the party asserting its invalidity, to show that the testator regarded it as invalid by reason of such informality.

The jury found the will “invalid” by their first yerdict; and, at the request of the contestants’ counsel himself, inquiry was made'of them by the court, as to which one of the grounds of contest they predicated their finding upon. The reply was, “ principally on the ground that the will was not signed by the witnesses in the presence of the testator.”— Here, then, the court was informed, by means to which the contestants could surely raise no objection, that the verdict was principally upon a ground which might, or might not, render the will, in judgment of law, invalid, according to circumstances. If the ground upon which the jury “principally” based their verdict, was the sole predicate for it, as they indicate by their second finding, the court was left in doubt as to what judgment to render. But when the second verdict was brought in, viz., that the will was invalid, because the subscribing witnesses failed to sign in the presence of the testator, the contestants, who now are moving to have judgment upon some one of these verdicts, requested that the court should send the jury back, to try the other issues as to the soundness of testator’s mind and the alleged undue influence ; and they were accordingly sent back. Why, we ask, were they sent back ? The reason is obvious, The special finding, that is, the facts found, went only to the invalidity of the will as respects the land; and although the jury say invalid generally, this is a conclusion of law, not warranted by the facts found without more, and the court, and not the jury, must judge of the law, — “ad qucestionem juris, non respondent juratores, sed judices.” — 8 Thomas’ Coke 391, top page. The court had the right to disregard the conclusion, and enter judgment according to the law arising upon the facts.

But there were other grounds of contest going to the whole will. These must be passed upon, to enable the court to dispose of the whole subject-matter of the litigation, and hence the jury were sent back, — sent back at the contestants’ request, and it is not for him to say that this was improper. Even where the court has no power to grant a new trial, but does so, and the party submits to the new trial, he cannot have a mandamus for judgment on the first verdict (Weavel v. Lasher, 1 John. Cases 241) ; much less, where the court, upon his motion, had rejected the verdict itself.

The third verdict finds the legal conclusion, but the court is certified, that it is not predicated upon either one of the grounds of contest; and this the court rejected, as, under the statute above referred to, and the circumstances of this case, the judge had a perfect right to do.

In Parrott v. Thacher, 9 Pick. 431, Parker, C. J., in delivering the opinion of the court, said, “We certainly do not mean to encourage the practice of questioning jurors as to the grounds of their opinions; but where there are distinct grounds upon which the verdict may be given, perhaps it is not improper to ascertain which they adopted, as there may be little or no evidence upon one and sufficient upon another; and if it appear that they did not agree upon either of the grounds, I do not see how their verdict can stand, unanimity being required. If there are three distinct grounds upon which an action may be maintained, all independent of each other, and four only of the jury agree upon each, I do not see how they can amalgamate their opinions, and make a legal verdict of them.” If this be correct with respect to ordinary trials, it applies with much greater force to cases like the present, where the facts are to be ascertained under the direction- of the court.

We grant, that, under the general law governing trials, the jury are never bound to find a special verdict. They are bound, however, to receive the law from the court, when given them in charge, and they may always apply the law to the facts, and find a general verdict, which is thus composed of law and fact. But as respects contests of this character, which involve the validity of wills, the statute, for obvious reasons, gives the court the power to require the jury to find facts, and the issues are to be tried by the jury under its direction. The will embracing both real and personal property, he must be certified by their finding as to all the facts necessary to enable him to pronounce upon it as to both; otherwise, with the means at hand of being enlightened, he would be compelled to grope in the dark, and possibly to pronounce a judgment neither satisfactory to himself, nor just to the parties. The jury retired each time with specific directions from the court, as to the manner of their finding, requiring them to pass upon each one of the grounds on which the contestants relied for invalidating the will. They persisted in a refusal to comply, and the court decided that their verdict was insufficient and refused to receive it. To reverse this decision of the court, and to cause judgment to be entered on either of the verdicts, by awarding a mandamus, and this upon the application of the party at whose instance inquiry was first made as to the facts found by the jury, and upon whose motion the second verdict was rejected, would be virtually to repeal the statute before mentioned, — would be to render a judgment upon an uncertain and unsatisfactory verdict : would, in effect, make the jury triers of the law, leaving the court to grope in the dark for the facts ; would be to trample upon the discretion of the primary court, who, had the verdict been received, had a right to set it aside and grant a ^iew trial, which right, being discretionary, is not subject to revision in this or any other court; in short, it would be an unwarranted assumption of jurisdiction, unsanctioned by principle, and unsustained by any precedent, either English or American.

There are a few cases, it is true, which seem to' countenance the idea of forcing verdicts upon courts, which have the right, in the exercise of their sound discretion, to set them aside, and award new trials.—Ex parte Caykendoll, 6 Cow. Rep. 53, in which the court below had received improperly the affidavits of some of the jurors as to a mistake made by them in making up their verdict, and had awarded a new trial;' the Supreme Court of New York granted a mandamus, for vacating the order, and for judgment on the verdict. The point in question was not discussed, either by the counsel or the court, and no authority, except as to the impropriety of receiving the affidavits of jurors to impeach their verdict, was cited. Suppose the primary court, .in answer to the rule nisi, had returned, “ True, we received the affidavits, but gave them no force ; we heard the evidence, and upon the merits, in the exercise of our discretion, we set aside the verdict,” could the Supreme Court rightfully have controlled that discretion! In Ex parte Bacon & Lyon, in the same volume, p. 393, in the matter of vacating an order setting aside a default by the Common Pleas, the same court furnishes an answer to this inquiry: “ The Common Pleas must be their own judges, upon the circumstances before them, whether they will set aside a default upon the merits. This is so much a matter of discretion, that we will not interfere by mandamus. ”

Another case occurs in 9 Mass. Rep. 370 (Commonwealth v. The Justices of the Sessions for the County of Middlesex), where the Common Pleas had set aside a verdict of a jury, which found that the owner of land over which a highway had been laid out, had sustained no damage thereby; and the Supreme Court awarded an alternative mandamus to the Common Pleas, to receive and record the verdict, or to show cause &c. The point in this, as in the preceding case, was not discussed ; no authority is cited, and it doe.s not appear to have received much consideration. Besides, anote by Mr. Rand, the editor of the 3d edition, clearly shows, that it was, in effect, controlling the discretion of the primary court, and was, therefore, unwarranted either upon principle or authority. This case was pressed upon the same court, differently organized, in Gray v. Bridge, 11 Pickering’s Rep. 189; but the court said : “ This application [to set asido the order granting a new trial, and to enter judgment on the verdict] is founded on the supposed error of the court below in admitting proof of the confessions of Usher, which, the petitioner’s counsel contended, were not competent evidence. But in deciding this case, it is not necessary to consider the question as to the competency of the evidence, because we think it very clear, that the Court of Common Pleas had a discretionary power to grant a new trial, if the justice of the case, in their opinion, required it, and that we ought not to attempt to control or coerce the discretion of that court.” This decision conforms to the law, as we understand it, and accords, too, with the English cases upon that doctrine. — See 2 Bar. & Ores. 286 ; 4 B. & Adol. 800 ; 1 Chitty’s Rep. 643 ; ib. 37 ; 2 ib. 257; 3 Adol. & El. 725. The case last cited bears a strike ing analogy to this, in some respects. Hewes was indicted for administering poison to three mares, in some meal, of which they ate and died- The jury returned their verdict as follows: “Guilty by mischance.” His counsel insisted that the verdict amounted to an acquittal ; but the chairman of the Criminal Court told them to retire and find him either guilty or not guilty. They retired, and returned a verdict: “Guilty, but recommended to mercy.” The chairman asked them on what .ground they made their recommendation. They replied, “We recommend to mercy on the ground that he did not do it with a malicious intent, but did it to benefit the condition of the horses. ” Thereupon the last verdict was received, and sentence of conviction entered. The motion was made by the defendant’s counsel, to the King’s Bench, for a mandamus, to cancel the alteration ; but it was refused. Littledale, J., said : “ I rest my judgment, however, upon the broad ground, that we have no right to interfere, in this respect, with the practice of the court below.” Patteson, J — “ I have always understood that this court might send a mandamus to an inferior court to do its duty, in general terms, but not to do a particular thing ; as to make an alteration, &c., in the minutes.” Williams, J., said : “ The writ is granted only to set parties in motion, where they have refused to act.”

But it is unnecessary to multiply authorities. Although this court has the power to control and supervise the action of the inferior courts, yet this must be done in a manner recognized by law, and so as to leave them untrammeled in the exercise of the discretionary powers vested in them.

Let the motion be denied, yvith. costs.