Bradstreet v. Bradstreet

64 Me. 204 | Me. | 1874

Appleton, C. J.

This is an appeal from the decree of the judge of probate -of Waldo county, allowing the account of the appellee as guardian of the appellant.

The case comes before us upon a motion for a new trial and upon exceptions to the rulings of the justice presiding.

It is urged that the verdict should be set aside as against evidence. Rut after the account of the guardian has been passed upon with approval by the judge of probate, after a verdict of the jury in favor of the appellee upon the issues presented for their determination, and after the affirmance of the decree from which the appeal was taken by the justice presiding, it would require a greater preponderance of evidence to justify this court, which has neither seen nor heard the witnesses, to overrule the judgment of those who have, than is disclosed by the evidence before us.

Ry R. S., c. 63, § 26, an appeal may be taken from the decree of the judge of probate to the supreme judicial court, as the supreme court of probate, and “said court may reverse or affirm in whole or in part the sentence or act appealed from, pass such decree thereon as the judge of probate ought to have passed, remit the case to tbe probate court for further proceedings, or take any order therein that law and justice require; and if, upon such hearing, any question of fact occurs proper for a trial by jury, an issue may be formed under the direction of the court, and so tried.”

Courts of probate are of special and limited jurisdiction. Their proceedings are not according to the course of the common law. They have no juries. Neither party, upon appeal, can claim as a matter of right, a trial by jury. The judge of the appellate .court may form an issue when, in his judgment, any question of fact occurs proper for a trial by jury, and not otherwise. The issue is to be formed and tried at law, but as in equity, to inform the conscience of the court, and under its direction. Higbee v. Bacon, 11 Pick., 423; Wood v. Stone, 39 N. H, 575; Patrick v. Cowles, 45 N. H., 553.

The counsel for the appellant complain that certain issues presented by them were not submitted to the jury. But it was for the judge to determine what issues should be so presented, not the counsel. Nor does it appear that the appellant has in any way suffered by the action of the court in this respect.

The presiding justice, however, in virtue of the authority given by statute, did form the following issues for the decision of the jnlT-

I. Did the guardian support said ward while she lived in his house as an act of charity till her former guardian was appointed?

To this interrogatory, the jury returned: — “Yes.”

II. Did the services of the ward rendered for her guardian compensate him for her support after the appointment of the first guardian ?

To the second interrogatory, the jury returned: “No.”

III. How much, if anything, was the guardian entitled to receive from the ward by virtue of his guardianship and the account filed by him at the date of its settlement at the probate office ?.

To the third interrogatory, the jury returned : — “One hundred and forty-one dollars and ten cents.”

It is objected that these issues involved issues of law as well as of fact, and should not have been thus submitted to the jury. But the facts were submitted to the jury under instructions, pertinent and applicable. In all cases, the Verdict is the determination of issuable facts subject to the rulings of the court as to the law applicable to such facts. The appellant has, therefore, no cause of complaint, if the law as given to the jury was correctly given. All verdicts involve both fact and law; the law to be given to the jury by the court; the facts to be found by the jury, and the verdict is, as should be, the result of the law as properly, applied to the facts.

The whole charge is reported. The practice of reporting exceptions to the whole of a charge cannot be too strongly discountenanced, as inconvenient and irregular. The points of law should be clearly and distinctly presented, and the facts should be stated as fully as is necessary to enable the court to appreciate the applicability of the instructions and determine their correctness. A full report of the evidence and of the charge, embracing the material and immaterial, the relevant and the irrelevant, should be avoided as unnecessarily expensive to the parties and uselessly burdensome to the court. Burt v. Merchants Ins. Co., 115 Mass., 1; Evans v. Eaton, 7 Wheaton, 426.

It is objected, that the presiding justice erred in some statement of fact to the jury. But if the judge inadvertently misstates the facts, the counsel should, at the time, call his attention to the fact, that it may then and there receive correction. Holton v. Moses, 3 Barb.. 34; Varnum v. Taylor, 10 Bosworth, 148.

A portion of the. appellant’s account is for personal services. It is insisted that, the account not having been settled within three years, this part of the account is forfeited under the provisions of R. S., c. 67, § 19, which requires that, “every guardian shall settle his account with the judge at least once in three years, and as much oftener as the judge cites him for that purpose;” and shall “forfeit all allowance for his personal services, unless it appears to the judge that such neglect arose from sickness or other unavoidable accident.”

The account for personal services was allowed by the judge of probate. Its allowance is not among the reasons of appeal. In an appeal from a decree of the judge of probate allowing a guardian’s account, the appellant is confined to the matters specified in Ms reasons for appeal. Patrick v. Cowles, 45 N. H., 553. The reasons of appeal are to be filed in the probate office, and the party appealing is restricted to the reasons assigned by him. Gilman v. Gilman, 53 Maine, 184. The amount of the charge was not the matter of objection, but the charge itself. The ob-objection now first taken was not open to the appellant.

It was urged that the appellee had made a special agreement with a former guardian to support his ward until she should arrive at the age of eighteen years, and that her labor in his (the appellee’s) family was a sufficient compensation for her board and clothing. All this was denied.

The amount claimed for board was small. These matters were first presented to the judge of probate for his consideration, and the account of the appellee was allowed. After a full and patient hearing of the evidence and a verdict of the jury, negativing the claims of the appellant, and affirming the correctness of the account of the appellee, the justice presiding confirmed the decree of the judge of probate, in all which we perceive no error.

Motion and, exceptions overruled,.

Walton, Dickerson, Barrows and Peters, JJ., concurred.