PATTEN v. CILLEY

A decision of the federal court dismissing a petition for the removal of a case will not be reviewed in this court. Upon an appeal from the probate of a will, the executor has the right to open and close, though the only question for actual trial is, whether the testator was unduly influenced in making the will. Upon that question a witness, found to be qualified, may be allowed to testify that the testator was a person not easily influenced by others. The omission of an agent, who caused a bill in equity to be brought against third parties, to disprove upon the trial thereof an allegation in the answer, may be evidence of its truth, and may be used to contradict him as a witness in another suit between other parties. There is no presumption of law that the confidential agent of a testator, who assisted him in making the will in which he is the sole legatee, unduly influenced the testator.

Per Curiam.[fn*] [fn*] See foot-note on page 80.

1. The defendant's application for the removal of the cause to the federal court, on the ground of local prejudice, presented a jurisdictional question which counsel have argued at considerable length, but upon which the opinion of this court would be of little practical value. After the trial, the federal court decided that it had no jurisdiction of the subject-matter, and dismissed the petition. In re Cilley, 58 Fed. Rep. 977. As this court has no power to overrule that decision, or to compel the circuit court to entertain jurisdiction of the case, a reexamination here of the question decided in that court would be useless and unprofitable. Nor is it expedient for us to inquire whether the filing of the petition for removal suspended the power of the state court to proceed with the trial, because the federal court held that it did not have that effect. Their language is, that "as this petition, in the absence of an express order from this court, did not restore the original cause, but left it in the state court, to which it was remanded, it only remains for us to dismiss the petition, and it is so ordered." In re Cilley, supra. A remanding order was unnecessary, the case having remained in this court during the pendency of the petition in the circuit court.

2. At the trial the defendant claimed the right to open and close, and excepted to the ruling that the real issue was the validity of the will, and that the plaintiff had the burden of proof and the right to open and close. A paper purporting to be executed by Matilda P. Jenness was approved and allowed as her will by a decree of the probate court, and the defendant's appeal raises the question whether the decree shall be reversed or affirmed. Under the statute requiring him to set forth the reasons of his appeal (P. S., c. 200, s. 2), he waived all questions not stated in his appeal. But this waiver does not abridge the rights of the plaintiff. On his motion any error in the decree may be corrected here. Patrick v. Cowles, 45 N.H. 553. The appeal is to the supreme court of probate, and is not a transfer of issues from a probate to a common-law jurisdiction. If no county judge of probate could sit, the will would be allowed or disallowed, and the estate would be settled, in this court. "Upon appeal, the whole case would be brought within the jurisdiction of the supreme court of probate." Perkins v. George, 45 N.H. 453, 454; Moses v. Julian, 45 N.H. 52, 59, 60.

The plaintiff suggests no error in the decree, and there is no occasion for the exercise of the probate powers of this court on anything but the original issue, whether the paper offered for probate by the plaintiff should be approved and allowed as Matilda's will. The defendant's reasons of appeal are, — (1) Undue influence, over-persuasion, and artful misrepresentation. (2) The deceased did not understand the nature, extent, amount, and value of her property. (3) The instrument offered for probate was not duly executed. The omission of other reasons was a waiver of the questions of Matilda's age and sanity. On the first day of the trial the defendant waived the questions raised by his second and third reasons. Upon these waivers, there was nothing for trial but the question presented by his first reason. His division of the general probate issue into its component parts, and his waiver of all parts but one, left the issue to be tried on only one of the points on which it would have been tried if there had been no waiver. On the determination of that one, the decree is to be affirmed or reversed.

If Matilda had given her property to the plaintiff by deed and died intestate, and the plaintiff had brought a writ of entry against her heirs, at the trial of the action on the general issue a specification of the defence could be filed voluntarily or under an order of court. A specification alleging undue influence exercised by the plaintiff in obtaining the deed as the sole defence, would narrow the trial on the plea of nul disseizin. Between this plaintiff and this defendant, the probate proceeding, in substance and in effect, is an action brought by the executor, who asserts a testamentary title against an heir who denies that title.

The heir's abandonment of two reasons of appeal was a material modification of his specification of defence. It narrowed the trial on the question whether the decree should be affirmed or reversed, which is a secondary form of the issue whether the paper offered by the plaintiff for probate is Matilda's will. The change of specification did not give the defendant the position of a plaintiff nor send an issue from the supreme court of probate to a common-law jurisdiction. Whether the defence consisted of many items or only one the executor continued to be the plaintiff, the party having the affirmative, the party asserting the validity of the will as he asserted it before the defendant abandoned his third reason of appeal and ceased to deny the due execution of the will. The appellant continued to be the defendant, denying its validity on the ground of undue influence. The mere narrowing of the trial in either of the probate courts, by oral or written waivers reasons of appeal, specifications or other steps of procedure, which select from all the points of possible controversy those which the defendant elects to try, does not extinguish the original issue which was necessarily be decided when the decree was made, and will necessarily be decided again when the decree is affirmed or reversed.

In one sense and for some purposes the question is whether the execution of the paper called a will was obtained by undue influence. In another sense and for other purposes the question is whether that paper should be approved and allowed as Matilda's will and whether its validity shall be established by an affirmance of the decree of the probate court, or whether its invalidity shall be established by a reversal of that decree. Whatever may be said of the verbal or the substantial character of the distinction between the general and the special form of the question, and however important the distinction may be for some practical purposes and however unimportant for others, the final decision of the defendant's appeal will be a probate decree affirming or reversing the decree in rem made by the probate court. From the time when the plaintiff presented the paper for probate till now he has been the party affirming it to be a will duly made, and he will hold that position to the end of the litigation.

"The party who affirms that a will was made has the primary burden of proof and the accompanying right to close." Judge of Probate v. Stone, 44 N.H. 593, 605. "Whatever form the issues which are sent to the trial term may assume in such cases, the nature of the proceeding is never lost sight of, nor is the final object to be attained to be kept from view." The case "is to be tried in this the supreme court of probate according to the principles adopted and the rules applied for the trial of the same questions in the probate court. And the question to be determined, no matter in what form the issues may be drawn, is the due and legal execution of the will. . . . It being understood that the object of the proceeding is to prove the due execution of the will without regard to the particular form of the issues the executor must first produce the will to be proved, and call the subscribing witnesses if alive and within the jurisdiction. The affirmative is fact on him, and he has uniformly been allowed the close." Boardman v. Woodman, 17 N.H. 120, 132; Hardy v. Merrill, 56 N.H. 227, 233; Perkins v. Perkins, 39 N.H. 163, 168; Whitman v. Morey, 63 N.H. 448, 455.

If the defendant were regarded as the party having the affirmative, his exception could not be sustained, as it does not appeal that injustice was done by the ruling that the plaintiff was entitled to open and close. Schoff v. Laithe. 58 N.H. 503; Amoskeag Mfg. Co. v. Head, 59 N.H. 332, 336, 337; Hilliard v. Beattie, 59 N.H. 462; 464; Rogers v. Kenrick, 63 N.H. 335, 341.

3. On the question of undue influence, the quality of Matilda's mind was a material fact. It was competent for the parties to show that she was firm and decided, or irresolute and easily persuaded to conform to the wishes of others. Foster v. Dickerson, 64 Vt. 233, 249. Witnesses found by the court to be competent to form valuable opinions on the subject, and to have had opportunities to form them, could give their opinions. Since the decision in Hardy v. Merrill, 56 N.H. 227, 242, 248, 249, the comprehensive rule there laid down, applicable to mental qualities as well as conditions, has been considered settled. Carpenter v. Hatch, 64 N.H. 573. The course taken at the trial was in accordance with our practice. There may be occasion to confine this class of evidence within limits of reasonableness and utility; but it does not appear that those limits were passed.

4. It was competent for the plaintiff to show why the testatrix did not give her property to her heirs, of whom John J. Cilley was one. Belknap v. Robinson, ante, p. 194; Foster v. Dickerson, 64 Vt. 233, 249. It appeared that she was displeased with his conduct while acting for her in a controversy upon her sister's will. In all adjustment of that controversy he did not obtain for her so large a sum as she desired. It was open to the plaintiff to show the extent and the special grounds of her displeasure, subject to such limitations as might be imposed on various grounds of reasonableness. The plaintiff contends that the jury might find that the omission to disprove the answer to the bill in equity was an admission that John did not represent Matilda at the meeting, and that this was a special reason for her displeasure. Upon the evidence to which our attention has been called there does not seem to be a very substantial ground of fact for contending that he sacrificed or neglected his aunt's interests at that meeting, and that his failure to meet the answer by proof in that suit was an admission of its truth; but it cannot be held that the answer of the heirs was incompetent as matter of law.

5. In the charge, the attention of the jury was called to the relations of trust and confidence existing between the testatrix and the plaintiff, and all the circumstances bearing on the question of undue influence, and it was not error to refuse to give further instructions on that subject. Inferences of fact may be drawn against a confidential agent in cases like this; but there is no presumption of law against the agent, and the three points presented in the requested instructions might have led the jury to regard matters of fact as matters of law. Carpenter v. Hatch, 64 N.H. 573, 575-577; Whitman v. Morey, 63 N.H. 448, 452, 453.

Exceptions overruled: decree affirmed.

BLODGETT and CHASE, JJ., did not sit: the others concurred.