Citation Numbers: 73 Me. 221
Judges: Appleton, Barrows, Libbey, Symonds, Virgin, Walton
Filed Date: 3/2/1882
Status: Precedential
Modified Date: 9/24/2021
On the fifth day of January, 1878, Aaron McKenney, a childless widower, at that time more than one hundred years old, executed a will revoking previous testamentary dispositions of several parcels of real estate in favor of certain of his kindred and friends, and devising to Abigail Alvord, his housekeeper, the appelleei his homestead farm with the buildings thereon, including the Haines field of five acres, more or less, and all the stock, farming utensils and tools, furniture and household goods, with the exception of one clock; also the Libby farm, near the Heath meeting-house in Saco; and appointing said Abigail Alvord executrix of the will, with a request to the judge of probate that no bond be required of her. Some time afterwards the plain one story farm house in which he had lived for many years was consumed by fire; and in his one hundred and second year he (or those who had the management of his affairs) proceeded to erect upon the homestead farm, thus devised to his housekeeper, a somewhat costly dwelling house after the modern style. Some of his kindred and expectant
Some of the heirs at law appealed from the decree of the judge of probate approving and allowing these instruments, and, upon issues framed in the Supreme Judicial Court, the jury at the January term, 1881, found that at the time of executing the will in January, 1878, the testator was of sound mind and not unduly influenced by Abigail Alvord or any other person; but that at the time of executing the instrument purporting to be a codicil,
We have no doubt of the power of this court to consider and pass upon the motion. By R. S., chap. 63, § 21, the Supreme Judicial Court, which, according to R. S., chap. 77, § 1, consists of a Chief Justice and seven associate justices, is made the supreme court of probate, and has appellate jurisdiction in all matters determinable by the several judges of probate, and while appeals from the probate courts are cognizable in the first instance at a nisi prius term held by one member of the appellate court, and his decision may in some cases be final, in very many cases his doings are subject to revision, according to the ordinary course of proceeding by the law court, and any errors in law, into which he may fall, may be corrected, or any questions which he may see fit to present by report to the law court are cognizable by it upon proper proceedings to bring them before it.
The present case is one which falls directly within the first specification in § 13, c. 77, of cases that come before the court as a court of law, viz: " cases in which there are motions for new trials upon evidence reported by the judge.” And, indeed, counsel in presenting this point, denies not so much the power of the court to pass upon such a motion as the propriety of its exercise in a case where the findings of the jury are advisory merely, and the court might go on to pronounce a decree non obstante veredicto. The suggestion is more plausible than sound. Construing all the statute provisions regulating the proceedings of this court at nisi prius and as a law court together, it cannot be doubted that, either upon exceptions or motion, the law court
But upoix a careful examination of the two hundred and seventy printed pages of evidence hero reported, we find no sufficient cause to sustain the motion or disturb the findings of the jury.
The testimoxiy may well be regarded as showing a gradual bixt serious decay of the powers, bodily and mental, of this extremely
Whatever the character of the influence thus acquired over him may have been, it is a significant fact that none of those who from their position in his family would be likely to know best in regard to it, are brought forward by the proponent as witnesses, nor does she present herself to explain or rebut the accounts which she is said by contestant’s witnesses to have given of his condition. There is pregnant evidence, moreover, that in the latter part of his days, more particularly after the execution of the codicil, there was something to be concealed by the persistent exclusion of all his relatives from his house. The devise in the codicil to the proponent is declared in set terms to be "in token of my appreciation of her thirty years service in my behalf but the evidence shows unmistakably that she was his housekeeper scarcely more than a third of that time, and that at times for a considerable period of years, she and her associates were anything but welcome occupants of a part of his house, because he did not possess sufficient energy to rid his premises of them.
Looking at the whole case, we do not find ourselves inclined to question the correctness of the findings of which the proponent complains.
Motion overruled. Decree approving and alloiving the will dated January 5,1878, and rejecting and disallowing the codicil thereto dated August 6, 1879, to be signed; and case remanded to probate court for further proceedings in conformity with this decree.