95 Vt. 407 | Vt. | 1921
At the trial of this cause, which was an appeal from the decree of the probate coprt for the district
The claim now made is that, while the court admittedly ruled as a matter of discretion, the action it took was under the circumstances an abuse of discretion which amounted to reversible error.
The transcript shows that the contestants produced many witnesses whose testimony tended to prove that the testator lacked the neeessary mental capacity to make a will when he executed the instrument in suit, and that he then was under the. undue influence of the proponent and'his wife. It is also true that the case discloses a large amount of testimony in support of the proponent’s claim that he was mentally alert enough to possess, and did possess, testamentary capacity and that he acted wholly in accordance with his own desires. This motion called for a decision which the judges, who had observed the witnesses when they testified and were acquainted with the many things that develop during a trial which cannot be preserved in the bound volumes of the transcript, were especially qualified to render. They had a peculiar opportunity to know whether the verdict was against the weight of the evidence when weighed by those having the best'means to test it. When, as here, there is evidence which will support a verdict, the action of the trial court in refusing to set it aside will not be disturbed on review. French v. Wheldon, 91 Vt. 64, 99 Atl. 232; German v. Bennington and
from a consideration of all the evidence presented at said hearing make a finding of facts. (1) That at the time that the supposed will was executed the said William Wood was not of sound mind and memory. (2) That the said William Wood at the time of the execution of said supposed will was unduly influenced thereto by the proponent James Wood and his wife, Mary Wood. (3) That the said supposed will is not the will of the said William Wood. That judgment be rendered that the said supposed will is not the will of the said William Wood.”
In denying this motion the court held that the verdict was not advisory, and that it did not have the discretionary power to-disregard it in view of the statute as it now exists. Of course, the sum and substance of the exception taken, which was to the refusal to grant the motion, is that the court refused to exercise its discretion. Nor do the contestants claim that they were entitled to more than to have a decision dictated by a sound and just discretion. This being so, we do not overlook the fact that the motion to set aside the verdict, which the court denied in its discretion, is so closely related to this motion and the granting of it so necessary as a preliminary step to the granting of this that the court could hardly exercise its discretion in overruling the first without in a very practical way exercising it as to the second also. Nevertheless, the ruling was made to rest upon the statute as a matter of law, and we will so treat it here.
In re Peck’s Estate, 87 Vt. 194, 88 Atl. 568, is ample authority for the proposition that before No. 98 of the Acts of 1915 took effect such a motion as this was properly directed to the discretion of the trial court, which had power to grant it. But the amendment of 1915, which controlled at the time of this trial, took from the court the discretion it formerly had as to whether the trial should, or should not, be by jury in language to be found in G-. L. 3466: “* f '* And when the appeal is from a judgment allowing or disallowing an instrument purporting to be a last will and testament, a right to trial by jury shall follow. ’ ’
This change in the statute was made' after the law.relating-to compulsory references (G. L. 2071), and put such a ease as
Yet the character of the investigation in a case of this kind and the rules governing the same are such that the trial court should, when properly appealed to, examine the record with deliberate care, and, if in its judgment injustice is done by the verdict, unhesitatingly exercise its supervisory power by setting it aside.
We find nothing in the colloquy Avhich occurred during the cross-examination of Mrs. Allston that merits serious consideration. So far as there was anything improper, it Avas promptly and adequately dealt with by the court and resulted in no harm to the contestants.
Judgment affirmed. To be certified to the probate court.