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Livingston's Appeal from Probate.

issue. The due execution of the will is admitted by the appellants, if not expressly upon the record, at least impliedly by not alleging that the testatrix did not execute the instrument or that she was of unsound mind. The reasons of appeal and the answer of the appellants closed the only issue before the jury, and upon this issue the appellants had the affirmative. Patten v. Cilley, 46 Fed. Rep., 892. In no case is it necessary to call all the subscribing witnesses to a will. But for the benefit of contestants the law demands that the proponents of the will have all the subscribing witnesses present if practicable, so that they may be called, if wanted, by the contestants. Their testimony as to the attestation is purely formal, and may be waived, and in this case was waived. The appellants were confined in their evidence to the allegations in their reasons of appeal. The court therefore erred in refusing to allow the appellants to go forward in their proof, and open and close the argument. St. Leger's Appeal from Probate, 34 Conn., 434; Field'Appeal from Probate, 36 id., 278.

2. The declarations of W. S. Beebe as to his connection with his mother in procuring a promise from the testatrix to leave her property to Beebe, were improperly excluded. They were offered only as affecting Beebe's interest in the will, and as such were proper evidence. The question of undue influence does not necessarily apply to the whole will, and to the extent that Beebe had any distinct interest in the will, or any other persons by his improper procurement, his declarations are proper evidence as affecting interests thus acquired. Crocker v. Chase, 57 Verm., 421 ; Saunders: Appeal from Probate, 54 Conn., 108.

3. The testimony of Anna Weibezhal as to her conversation with Mrs. Gibbons in 1886, as to the feelings of the testatrix towards Major Beebe, was admitted without objection. A letter which was offered in evidence was the subject of the conversation and referred to treatment by Major Beebe of the witness and of his influence over Mrs. Gibbons and was explanatory of the conversation, and as such became a part of the conversation and was admissible.

Livingston's Appeal from Probate.

4. The court erred in refusing to charge as requested by appellants as to the confidential relations existing between the executor, Mr. Whitney, and the testatrix. Although Mr. Whitney was not made a legatee yet he was given unlimited control and discretion in the management of an estate of $30,000 without bonds, by an instrument drawn by himself, the legal effect of which could not have been known to the testatrix. And these facts constituted suspicious circumstances which made it necessary for the appellees to explain, and the burden was upon them to show that these provisions were made with the full understanding of the testatrix. Schouler on Wills, $ 246.

5. The request made by the appellants and refused by the court, that if undue influence was exerted by Beebe as to some of the provisions of the will but not as to others, they might by their verdict set aside such provisions as they should find were made under such influence, is fully sustained by the decisions of our courts. Harrison's Appeal from Probate, 48 Conv., 202.

C. E. Perkins and C. E. Searls, for the appellees.

FENN, J. An instrument purporting to be the last will of one Julia Gibbons having been proved and approved by the court of probate for the district of Thompson, an appeal from the order and decree of said court was taken to the Superior Court, where the case was tried to the jury, who rendered a verdict sustaining the will, which was accepted by the court, and judgment rendered thereon. An appeal was taken from that judgment to this court. The appellants, in the Superior Court, filed a single reason of appeal, to the effect that the instrument was not the last will and testament of said Julia Gibbons, because she was improperly and unduly influenced to make the will by one of the legatees named therein. The appellees denied this allegation, and upon these pleadings the case was tried.

We quote from the record : At the opening of the trial the appellants claimed the right, and made a motion to be

Livingston's Appeal from Probate.

allowed to open and close the evidence and the arguments to the jury, on the ground that the only issue raised by the reasons of appeal was undue influence exercised upon the testatrix, and that the affirmative of this issue was upon the appellants; but the court admitted the testimony of the attesting witnesses, offered by the appellees, as to the due execution of the will and the mental capacity of the testatrix, and permitted the appellees to open and close the argument. The appellants excepted.

Was this ruling erroneous ? That the affirmative of the issue of undue influence was upon the appellants there can be no doubt. Rockwell's Appeal from Probate, 54 Conn., 119. The trial court so understood, and the only evidence, as the finding states, offered by the appellees in opening, was that of the attesting witnesses, and was confined to the due execution of the will and the mental capacity of the testatrix. Of course the burden of proving such due execution and capacity, unless lawfully dispensed with, rested upon the appellees. But it is claimed that they were dispensed with, being admitted. If this were any ordinary case or issue it must be conceded that the appellants' contention would be correct, and that the appellants would be entitled to open and close. Thus in Young v. Newark Fire Insurance Co., 59 Conn., 41, an action upon a fire insurance policy, where the answer admitted the allegations of the complaint, it was held that the defendant was entitled to go forward, though how far a ruling denying such right was a matter of discretion, not open to revision on appeal, was not determined, the case having been decided on other grounds. But this is not an ordinary case, and has never been treated as such in this state, but as a "statutory and special proceeding." Thus in Comstock v. Hadlyme Ecclesiastical Society, 8 Conn., 254, this court, in holding that on an appeal from a decree of probate establishing a will the burden of proof as to the capacity of the testator rests upon the party claiming under the will, who is therefore entitled to go forward on the trial, though such right was subject to the discretion of the court and error therein not ground for a new trial, said (p. 261:) “ The real

Livingston's Appeal from Probate.

question to be tried was whether there was a valid will, and this question was to be decided in the same manner as if it had not been decided in the court of probate. Those who claim under the will must therefore take upon themselves the burden of proof, and the rule is that where there is a necessity for any proof on the part of the plaintiff he ought to begin.” While in St. Leger's Appeal from Probate, 34 Conn., 446, courts of probate are described as “special and limited courts, without any common law jurisdiction, and created by statute for the probate of wills and the settlement of estates," the statutes in reference to wills are stated, and it is then said: “ When therefore the executor, in conformity with his prescribed duty, exhibits the will to the court of probate which has jurisdiction, it becomes the imperative duty of that court, of its own motion, to take the custody of it, and proceed to inquire and determine whether it was executed according to the formalities prescribed, freely, by a person of lawful age, and of sound mind and sufficient capacity, and is a valid will; and to approve or reject it accordingly.” Then, coming to the duty of the Superior Court on appeal, the opinion continues, (p. 447:) “An appeal from the judgment of a court of probate accepting or rejecting a will, takes up to the Superior Court for re-trial that special statutory issue, and nothing more ; and the appellate court, having no jurisdiction of probate or testamentary matters, can only re-try that special issue, and affirm or reverse the judgment of the court of probate as that issue shall be determined by a jury, and certify such affirmance or reversal to that court as a guide for its further action. Every fact which shows that the will is not a valid one is material under that issue, and an element of it, and is involved in its determination.” And finally, speaking of reasons of appeal, the court said: “ Reasons of appeal, therefore, are not necessary in our practice to make issues, and if they are filed and issues joined upon them, they are subordinate issues on the elemental facts of the main or real issue, which the jury must try and determine. * * * Reasons of appeal are necessary in those states where the main issue is not sent to the

Livingston's Appeal from Probate.

jury, but one or more special issues, real or feigned, are made up on the disputed elemental fact or facts, and are sent by the court to a jury of the same or a different court, to be tried and determined by a special verdict, and the court, on the return of the special verdict, determines the main issue in accordance with it. But in our simple practice, and under our statute, the main or real issue goes directly to the jury, and with it go the subordinate elemental issues or facts on which it turns; and that main or real issue must be found by the jury by their verdict in some form as the basis for a judgment by the court, or there will be a mis-trial. * * Unquestionably they” (reasons of appeal) “ have served and now serve a useful purpose as a notice to the opposite party of the grounds of objection to the will which will be relied upon at the trial, and by limiting the party filing them to evidence of the objections alleged in them; and were probably introduced for that reason. But however that may be, as the law now stands, and the whole case goes to the jury, they can have no other practical effect.” Since these decisions were rendered, and quite recently, by the rules of practice, 58 Conn., 588, sec. 3, the filing of reasons in case of appeal from orders of courts of probate, allowing or disallowing the probate of a will, by the party opposing such probate, which before that time had become customary, was made mandatory. But it was not the intention of the court, by the adoption of that rule, to change the existing law in reference to the real issue, the main issue, the special statutory issue, which the appeal took up to the Superior Court, and which, in the language which we have quoted, “must be found by the jury by their verdict in some form as a basis for a judgment by the court, or there will be a mis-trial.” Nor, since the proceeding is a strict and statutory one, would the court liave power, by rule or otherwise, to alter that issue. It seems to us, therefore, that notwithstanding the rule of practice and filing of reasons of appeal, the same duty remains upon the propouent of the will in the Superior Court as the law cast upon him in the court of probate, (a duty which, in that court, no admission or waiver could dispense

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