Denslow v. Moore , 2 Day 12 ( 1805 )

By the Court,

unanimously, the judgment was affirmed.

1. Tlie decree of the Court of Probate, from which the appeal was taken, is sufficiently ascertained, by the finding of the Superior Court. To have gone into a further detail, would have been, both unprecedented, and useless. But if otherwise, and the whole record was supposed not to be before the Court, it was the duty of the plaintiff in error, to have taken notice of this, by alleging a diminution of the record, and had the whole brought before the Court. If, however, the exception is well founded, the reversal can have no operation on the will ; and, of course, the defect can work no injury to the party complaining.

2. Whether the appeal was taken within the time limited by the statute, was a question of fact ; and if relied on, should have been pleaded in abatement. This not having been done, the legal presumption is, that the fact was otherwise ; and it affords no ground of complaint, that the time when the appeal was taken, does not appear by the decree. If it was incumbent on the plaintiff in error to have made this question, its not having been made, must be imputed to his own neglect, and constituted no error in the judgment of the Court.

3. The Court found, that the will was executed by the testatrix, subscribed by three witnesses, all signing in her presence.

From these facts, it does not follow, that the will was legally made, and ought to have been established. The position, taken by the plaintiff in error, with regard to this point, rests in mere form; and, if adopted, would, in all cases of this kind, preclude the Court from an inquiry respecting any fraudulent practices in procuring the execution of a will.

4. The Court having found, that the devisee under the pretended will, did, by threats and flattery, induce and coerce ■tte testatrix to execute the same, furnishes sufficient ground for setting aside the will. The term, coerce, gives an unequiv-oeal meaning to the words, threats and flattery, and shews c*eal’ty' they were unlawful, and designed to procure the .execution of a will, which, it is to be presumed, could not have been obtained without them. The meaning of these words being thus obvious, it was not necessary for the Court to find it in terms. The facts found warrant the judgment. To have found further, that the threats and flattery were unlawful, would have been to find a legal inference, and only giving an exposition of the meaning of the terms.