Gunn's Appeal from Probate. tor was acquired by him by will from his wife, and by deed from his wife's sister, both of whom died about nine months before he did; and that the legatees to whom the bulk of the estate was given by the will were blood relations of the testator's wife and her sister. After the appellant had closed his case, the appellee claimed, and offered evidence to prove, that at the time Mrs. Hawley executed her will, and her sister executed her deed, (which was on March 17th, 1890, seventeen months before the testator executed his will in question, and about two years before his death) "they were made with the verbal request and understanding that, upon the death of the testator, all of their estate so willed and conveyed should go to his wife's relations." Among the witnesses offered by the appellee was John A. Foster, who testified in substance that he was present as a witness when the will of Mrs. Hawley and the deed were executed, and that it was then and there stated by Mrs. Hawley or her sister, or by both, in Mr. Hawley's presence, that the property then willed and conveyed to him would at his death go back to his wife's relations on her mother's side; and that it was all so arranged. To this evidence the appellant objected, upon the ground that it was irrelevant and immaterial. The court overruled the objection and admitted the evidence, upon the ground that it tended to show the mental condition of the testatorwhether undue influence was exercised upon him or not by the beneficiaries under the will. The appellant excepted to this ruling. Was it correct? It is the claim of the appellant that the evidence admitted was a mere declaration of Mrs. Hawley or her sister, or both, made at the time when they executed the will and deed, and solely in reference thereto, that is, as to their effect; that it was not admissible thus to vary or affect the legal relations of the testator to his property, as the absolute owner thereof by virtue of the operation of those instruments, with full power and right to dispose of it as he pleased; and that the validity or construction of the dispositions of the wife and her sister were not on trial before the court and jury in this case. Gunn's Appeal from Probate. It is the further claim of the appellant that this evidence was merely hearsay; that it was not a declaration made by or to the testator; that he said nothing and was not asked to say anything; that his silence indicated nothing; that it was not a request but a positive declaration of an agreement made. And finally the appellant claims that the evidence was inadmissible because the declaration was too vague, uncertain and indefinite to be relevant and material to the issue. In reference to these claims we will say that, while it is too clear for discussion that the appellant is correct in the assertion that no issue concerning the validity or effect of the dispositions of property made to the testator by his wife and sister was or could be before the court or jury in the case, and that the evidence was not admissible for such purpose; yet we find nothing whatever in the record to indicate that it was offered or received with such object. On the contrary, its reception was expressly upon the ground that it tended to show the mental condition of the testator, as to whether he was or was not dominated by undue influence exercised upon him by the beneficiaries under the will. It is conceded by the appellant that for this purpose, and to rebut the charge made against the beneficiaries, proof by competent evidence of the source from which the testator derived his property, and of his declarations in regard to the same, would be admissible. And the appellant cites the following language used in Schouler on Wills (2d edition, sec. 242, note 2):— "Evidence showing through what line of relatives, or from what sources the fortune bequeathed was derived or favors received, may have a bearing upon the natural or unnatural character of the disposition." Now since the "natural or unnatural character of the disposition" is a relevant inquiry, and evidence of the source from which the property was derived is admissible because it tends to throw light upon that inquiry, any other evidence having the same clear tendency would seem to be equally admissible upon like ground and for like purpose. Can it be doubted that the declarations of the donors of the property to the testator, made in his presence, and at the very time of such donation, as to the ultimate disposal of such property, clearly denoted their desire Gunn's Appeal from Probate. concerning such final disposition, his full knowledge of such desire, and the naturalness of his own disposition so far forth as it was in consonance with such wish? It seems to us that to state the question thus is to answer it; that it cannot be doubted, and that the evidence was relevant and competent for that purpose. The weight of the testimony was of course. exclusively for the jury to determine, although we fully agree with the appellant in saying that it must have had substantial weight, and that "its tendency was to arouse the sympathy and influence the judgment of the jurors." Such would be the natural tendency of such evidence, because reason would approve and the sense of justice commend the disposition made by the donee of property so acquired, conformably to the known wishes of its donors, to and among those of their blood and the presumptive natural objects of their bounty. Such being our views, it would seem manifest that the further claims of the appellant to which we have referred require no separate answer. Although the citation of authorities does not seem necessary, it may be added that the case of Glover v. Hayden, 4 Cushing, 580, to which reference was made by counsel on both sides, seems much in point. The head note is as follows: “On an issue submitted to a jury, whether an instrument purporting to be the last will and testament of one deceased was procured to be made by the undue and unlawful influence of the residuary legatee therein named, evidence having been introduced to prove the affirmative of the issue, it was held that evidence was admissible on the other side that a large part of the property of the testatrix was derived by her by inheritance from her minor son, who died many years previous, and who was greatly attached to the residuary legatee, and had frequently expressed his intention, if he should attain the age of twenty-one years, to leave the bulk of his property to him, and that this intention was known to the testatrix." There is no error in the judgment appealed from. In this opinion the other judges concurred. VOL. LXIII.-17 63 258 64 487 Falken v. Housatonic R. R. Co. IDA FALKEN, ADMINISTRATRIX, vs. THE HOUSATONIC RAIL- New Haven & Fairfield Cos., June T., 1893. ANDREWS, C. J., CARPEN- The act of 1889 (Session Laws of 1889, ch. 157,) provides that "in every action of tort in which the defendant suffers a default and there is a hearing in damages, the hearing shall be to a jury unless the defaulting defendant hall give notice" etc. Held that a demurrer to a complaint overruled and a failure of the defendant to answer over, did not constitute a default, and that the hearing in damages in such a case did not fall within the statute and was to be held before the court and not before the jury. [Argued June 8th-decided July 6th, 1893.] ACTION to recover damages for the death of the plaintiff's intestate, caused by the negligence of the defendant company; brought to the Superior Court in Fairfield County, and heard in damages by a jury, on a demurrer overruled, before Thayer, J. Damages assessed at $5,000, and appeal by the defendant for error at a former term in the granting of a motion of the plaintiff that the case be heard by a jury. The case is fully stated in the opinion. G. Stoddard and W. D. Bishop, for the appellant, contended that until the act of 1889 was passed, all hearings in damages were by the court and not the jury; (Gen. Statutes, § 1106; Lennen v. Rawitzer, 57 Conn., 583,) and that that statute applied only to cases of literal default, and had no application to a case like the present one, where there was a demurrer to the complaint and an overruling of the demurrer; and that the court below erred in granting the plaintiff's motion for a hearing before the jury. M. W. Seymour and H. H. Knapp, for the appellee. The general dissatisfaction with the rule that all hearings in damages should be before the court and not before a jury, is Falken v. Housatonic R. R. Co. a matter within the judicial knowledge of the court. That dissatisfaction culminated in the enactment in 1889 of the following statute: "In every action of tort in which the defendant suffers a default and there is a hearing in damages, said hearing in damages shall be to the jury unless the defaulting defendant shall have given notice of his intention to suffer such default to the clerk of the court in which such action is pending, within thirty days after the time fixed by law for closing the pleadings in such action shall have expired." That the legislature intended to give this plaintiff and others situated as she was the benefit of having their damages assessed by a jury, cannot for one moment be questioned. What constitutes a default? "Judgments go by default, properly speaking, whenever between the commencement of a suit and its anticipated decision in court, either party omits to pursue, in the regular method, the ordinary measure of prosecution or defense. Hence judgment by default, when it goes against the defendant, is an implied admission of the charges advanced." Petersdorff's Abr., tit. "Judgment by Default." "A judgment by default is either by nihil dicit, where the defendant appears but says nothing, or by non sum informatus. Judgment by default is either for want of any plea at all, or for want of a plea adapted to the nature of the case. * * * A judgment by default is interlocutory or final. Where the action sounds in damages, as in assumpsit, covenant, trover, trespass, etc., the judgment is interlocutory that the defendant ought to recover his damages, leaving the amount of them to be afterwards ascertained. After an interlocutory judgment a writ of inquiry of damages is in general awarded, directing the sheriff by the oath of twelve honest and lawful men diligently to inquire into the damages and return the inquest into court." Tidd's Prac., 166. Swift in his System, (Vol. 2, p. 267,) says: "Where the action is founded on a tort, as trespass, assault and battery, or slander, if on demurrer judgment be rendered against the defendant, or if he refuses to plead, or makes default of appearance, then judgment may be rendered against him for the sum demanded by the plaintiff, unless he moves for a hearing in dam |