Hart v. Brainerd , 68 Conn. 50 ( 1896 )

Torrance, J.

This is a petition for a new trial on account of newly-discovered evidence, in the case of Hards Appeal from Probate, reported in 63 Conn. 575. The petition alleges in substance, that in the trial of that case it was a material question whether Erastus Brainerd did in fact execute the instrument offered as his will, which purported to have been executed in New York City on the 20th of August, 1887, and whether he was in fact in New York City on the 18th, 19th and 20th days of August of that year; that the exhibits annexed to the petition contained substantially all the evidence offered .in the case; that since said trial the plaintiff had discovered material evidence in her favor, which she failed and was unable to discover before or during the trial, “ although she used all reasonable diligence in endeavoring to find testimony in her favor ; ” and that thy verdict' and judgment against her in said case are unjust. The petition then sets out the newly-discovered evidence. That evidence consists solely of the testimony of two sisters, formerly servants in the family of the plaintiff, who, it is alleged, will testify in substance that they were in the service of the plaintiff and inmates of her house in 1887; that they spent the month of August of that year at the residence of Erastus Brainerd in Portland in this State, with the present plaintiff; that Mr. Brainerd was at his home in Portland all day of the 20th of August, 1887, and paid to one of the new witnesses her wages on that day about one o’clock in the afternoon, at the request of the present plaintiff; and had been continuously at home for some days immediately prior thereto.

The defendants demurred to the petition on several grounds, the substance of which may be stated as follows: The evidence is not newly-discovered; it could have been discovered before the former trial by the use of due diligence; it fails to make it clear that injustice was in fact done at the former trial; it is not alleged and does not appear that the testator “ could not have been both in Portland and New York on one and the same day ”; the evidence is merely cumulative in its character and might be met by other and opposite cumulative evidence on the part of the defendants; it is not sufficient to show that if a new trial were granted a different result would be produced. The Superior Court sustained the demurrer and rendered judgment for the defendants.

The record does not show whether the demurrer was sustained upon only some of the grounds, or upon all of them; but we are of opinion that it should be sustained on the ground that the facts alleged and set forth do not make it apparent either that any injustice was done upon the former trial, or that the new evidence is sufficient to turn the cause in favor of the plaintiff if a new trial were granted.

One of the claims made by the present plaintiff on the former trial was that the signature to the will was a forgery. Upon the issue raised by that claim both sides offered not only the testimony of experts as to the handwriting, but also testimony as to the. whereabouts of the testator on the 20th of August, 1887. Upon this latter point the present plaintiff testified in substance, that the testator, who was her father, was at his home in Portland on the 20th of August, 1887; that she requested him that day to pay one of her servants, and that he then and there did so in the dining-room in her presence; and further that he returned home from Block Island on the 15th of August, 1887, and was in Portland until the latter part of September. She also offered testimony showing that the testator always stopped at a certain hotel when he was in New York City, and that he was not registered as stopping there on, or about, August 20th, 1887. Upon this particular point the other side offered the evidence of the three witnesses to the will, to the effect that the testator executed it in their presence in the city of New York on the 20th of August, 1887.

It thus appears that the newly-discovered evidence is to the very same fact and the same attending circumstances, testified to upon the former trial, and it is of the very same nature as that before offered in proof of that same fact. It thus comes clearly within the definition of evidence merely cumulative. Waller v. Graves, 20 Conn. 305.

But in addition to this,' it by no means appears from the petition and the exhibits forming a part of it, that the new evidence would even probabty be sufficient to turn the cause in favor of the plaintiff, and show that if a new trial were granted a different result would be produced; or that its effect will certainly be to make a doubtful case clear; or that any injustice was done on the former trial. On the contrary, after a careful consideration of all the testimony set forth in the petition, we are of opinion that if a new trial should be granted it is very improbable that the newly-discovered evidence would produce a result different from that of the former trial. Even if the jury should be convinced by it that the testator was in Portland on the 20th of August, 1887, it is very improbable that it would satisfy them that he did not execute the will in New York, if they determined the case “ solely upon the law and the evidence.” We are therefore of opinion that the demurrer was properly sustained. Norwich & Worcester R. R. Co. v. Cahill, 18 Conn. 484, 493; Waller v. Graves, 20 id. 305, 310; Parsons v. Platt, 37 id. 563-565; Husted v. Mead, 58 id. 55, 64.

There is no error.

In this opinion the other judges concurred.