Webb v. Fuller , 83 Me. 405 ( 1891 )

Peters, C. J.

This case was heard on demurrer (77 Maine, 568), afterwards presented on special issues to a jury, they rendering a verdict for the complainant which was sustained by the full court, then sent to a master who made a report, and lastly heard by a judge sitting in chancery, who filed a decree for the complainant. The respondents appealed from the decree, when, upon motion of the complainant the sitting judge declared such appeal to be frivolous and intended for delay, and certified the case to the court under the provision of R. S., oh. 77, § 34, in order that the pending questions may receive a speedy determination.

We have examined and considered all matters legitmatcly presented, and think that only a single position taken for the defense need be spoken of. The statute of limitations is relied on in defense of some of the items of claim allowed by the master. The point having been unnoticed on demurrer, and in the answers setting up a general defense to the bill, it comes too late at this stage of the case to be favored, although the court is not without power, in the furtherance of justice, to allow the plea, even as late as this, to be interposed.

The chax-acter of the case forbids our extexxding any sxxch indulgence to the defendants, axxd the plea would be unavailing, if it were allowed to be made. Whilst the property sought to be Tecovex’ed froxxx the defendaxxts was received by them more thaxx six years before the coxnplaixxaxit’s ixxtcstate died, there having beexx xxo assertion of claim by her in her life-time, the jury found that it was gottexx from her by undue influence, that she had not mental ■capacity to act in the matter for herself, axxd that she coxxtiixued ixx such coxxditioxx until she died. Decree affirmed with costs.

Libbet, Emery, Foster, Haskell and Whitehouse, JJ., ■coxxcurred.