Thompson , 118 Me. 114 ( 1919 )

Coenish, C. J.

This is a probate appeal. On the fourth day of September 1917, the Judge of Probate of Lincoln County by proper decree allowed the last will and testament of M. Amanda Ford. From that decree an appeal was taken to the Supreme Court of Probate for Lincoln County. At the October term, 1917, the appeal was heard, and two questions of fact were submitted to the jury, one, whether at the time of execution of the will the testatrix was of sound and disposing mind and memory, and the other whether said instrument was her voluntary act uncontrolled and uninfluenced by others. To each question, an affirmative answer was returned. Counsel for appellant filed thereupon a simple motion for new trial addressed to the Law Court, without any decree being made by the Supreme Court of Probate.

As a matter of strict statutory construction, it may well be doubted whether this course of procedure is correct; but in view of the fact that such a practice has been of long standing, a majority of the court do not feel compelled to dismiss the motion on this ground without considering the merits of the case. If the customary procedure is to be changed or modified, it had best be done by rule of court.

A careful examination of the record to determine the merits of the controversy leads irresistibly to the conclusion that the findings of the jury were in strict accord with the testimony, and that the decree of the Judge of Probate in allowing the will was without error.

The entry will therefore be,

Appeal dismissed with costs.

Decree of Judge of Prohate affirmed.