Backus v. Cheney , 80 Me. 17 ( 1888 )

Haskell, J.

This is a probate appeal wherein the validity of a will is denied because of the incompetency of the testator, and because the same was procured by undue influence.

The appellees moved a change of venue because of local prejudice so great as to prevent a fair and impartial trial of the issues involved before a jury of the vicinity.

The presiding justice ruled as matter of law that the court had no power to grant the motion, to which ruling the appellees have exception.

R. S., c. 63, § 23, makes the Supreme Judicial Court the Supreme Court of Probate ; and section 28 provides that the Supreme Court of Probate "may reverse or affirm, in whole or in part, the sentence or act ” of the probate court " appealed from, pass such decree thereon as the judge of probate ought to have passed, remit the case to the probate court for further proceedings, or take any order therein that law and justice require ; and if upon the hearing any question of fact occurs proper for a trial by jury, an issue may be formed (framed) for that purpose under the direction of the court, and so tried.”

Questions of sanity and of undue influence arising upon the probate of wills are usually submitted to a jury for determination. This practice has been so common and uniform as to become almost a law of the court.

When such issues are framed for a jury trial, "all incidents of such trial follow.” Carvill v. Carvill, 73 Maine, 136. The cause then assumes the character of an action at law. The procedure is according to the course of the common law, and is governed by legal rules throughout.

R. S., c. 82, § 14, provides that any judge of the Supreme Judicial Court, while holding a nisi prius term, on motion of either party shall, for cause shown, order the transfer of any civil action or criminal case pending in said court to the docket thereof in any other county for trial.”

No good reason is shown why a probate appeal, when it has assumed the character of, and is to be conducted as an action at law, should not be subject to the provisions of the above statute.

If the issue framed for the jury is substantially decisive of the whole ease, and no ulterior proceedings are to be had before the court requiring further investigation or consideration, the whole canse should be transferred to the other county, and the decree from the court there sitting should be certified directly to the probate court from whence the appeal came.

If, however, the court is of opinion that further proceedings before the court will be necessary after the issues framed for the jury shall have been decided, it may certify to another county such issues only for trial; and upon their determination the result should be certified back to the court from whence they came for its further consideration.

When a jury trial is had in another county from that where the cause was originally pending, questions of law arising upon the trial should go to the law court in the district where the trial was had and there be settled ; and the mandate of the law court should be sent to the clerk of the court from whence the exceptions came to be obeyed as its tenor may direct.

Exceptions sustained.

Peters, C. J., Walton, Virgin, Libbey and Foster, JJ., concurred.