46 Conn. 230 | Conn. | 1878
Orlando Fenn died in 1876, leaving a will by which he devised his entire estate to the First Ecclesiastical Society and Church 'in Watertown, upon condition .that his executors should take possesion of, hold, manage and control it during the life of his sister, Delia Fenn, and pay to her so much thereof as she should, in their judgment, at any time need for her comfortable and proper support, and at her decease pay over whatever remained to said society. The executors represented the estate to be insolvent, and commissioners were appointed'to receive and decide upon the claims of creditors. The commissioners allowed a claim in favor of Delia Fenn for the sum of $1,197, and the society took an appeal to the Superior Court for Litchfield County in 1877. In that court Delia Penn, the appellee, filed a statement of her claim in the following terms:
*232 “ Watertown, Conn., October 21, 1876.
“ Estate of Orlando Fenn, to Delia Fenn, Dr.
“ To labor from January 15,1859, to January
15,1867, at $1.50 per week, - - $702.00
“To labor from January 15, 1867, to June 2,
. 1876, at $2 per week, - 972.00 *
$1,674.00 ”
The cause having been committed to and considered by the jury, they returned into court, and to an inquiry replied that they had agreed upon a verdict, and the foreman passed a writing to the clerk, who read it aloud as containing these words:
“ First Ecclesiastical Society, etc.
Appeal from Commissioners.
, | ÁI™E S Verdict.
In this case the jury find the issue in favor of the appellee, and therefore find for the appellee to recover of the estate of Orlando Fenn the sum of sixteen hundred and seventy-four dollars and costs of suit.
(Signed,) Andrew J. Pierpont, Foreman.''’
The court accepted this verdict thus read and ordered it to be recorded.
The clerk then addressed the jury as follows : “ Gentlemen of the jury, listen to your verdict as accepted by the court; {First Ecclesiastical Society, etc., Appeal from commissioners. Appellee’s verdict. In this case the jury find the issue in favor of the appellee, and therefore find for the appellee to recover of the estate of Orlando Fenn the sum of sixteen hundred and seventy-four dollars and costs of suit. (Signed,) Andrew J. Pierpont, 'ForemanThis is your verdict, so say you all.” To which the jury all assented.
Thereupon the jury were dismissed, and the court was adjourned to a subsequent day. After the adjournment it was discovered that the writing which the foreman had passed to the clerk was in the words following:
“ First Ecclesiastical Society, etc.
• Appeal from Commissioners.
Appellee’s Yerdict,
“ In this case the jury find the issue in favor of the*233 appellee, and therefore find for the appellee to recover of the estate of Orlando Penn the sum of sixteen and seventy-four dollars and costs of suit.
(Signed,) Andrew J. Pierpont, Foreman.”
Thereupon the appellants moved in arrest of judgment. The court overruled the motion, and rendered judgment upon the verdict as accepted by the court.
The appellants filed a motion in error; also a motion for a new trial.
Pirst, as to the motion in error.
The clerk having read in the hearing of the court and jury the writing which was placed in his hands by the foreman as if it had been so written as to find for the appellee to recover $1,674 and costs, the court ordered the verdict to be recorded in that form. The clerk then asked the jurors to listen to it as accepted by the court, and again recited it to them in the same words; he then enquired if each ju'ror assented to it as thus repeated, and each juror gave an affirmative answer. Under our practice this last answer by each juror made the verdict. Neither giving an assent in the jury room, nor the signing of a writing there, nor the delivery of it to the clerk, absolutely bound the conscience of any juror in this case; all these are revocable acts; until he gave an affirmative answer to this last question by the clerk there was space for a change of opinion and opportunity to recall any previous act or word. Therefore that to which the jurors assented in court is the verdict in this case. The motion in arrest was -properly overruled.
Second, as to the motion for a new trial.
Upon cross-examination the appellee testified that she rendered the services relying upon her brother’s making provision for her in his will. The appellants claimed, and requested the court to charge the jury, that she was not entitled to recover anything if the services were rendered in pursuance of an expectation and understanding of provision being made therefor in her brother’s will; also that if she could recover for services rendered upon such expectation,
The appellants insist that the court permitted the jury to determine as a matter of fact, and of law as well, whether the provisions of the will were a performance of the contract as claimed by tlie appellee.
The charge is not open to tliis objection. The jury were instructed, if they believed from the evidence that the appellee agreed not to malte any claim for lier services upon her brother, nor upon bis estate after bis death, but to accept as'payment whatever he should see fit to give lier by liis will, that she must obtain her compensation by that instrument alone, and consequently could not enforce lier claim as made. If, again, they believed from tlie evidence that she labored under an agreement with him that she should receive for her services such sum as they should bo reasonably worth and that payment should be postponed until after liis death and bo made from his estate, they were instructed to find the value of those services and the money value of the provision in her behalf in the will, and thus to determine if the latter was equal to the formerif not, by wliat amount it was less, and to express that amount in the form of a verdict for lier.
By tlie will slie was to receive from time to time such sum or sums as in tlie opinion of the executors should be necessary to provide for lier comfortable and proper support. What amount that would be, and what the money value of such a bequest then was, are neither of them questions of law. She might then have, or might in the near or tlie remote future become possessed of, estate sufficient in amount to place her beyond need of help from any source, or the necessity of labor even, for lier support; slie might never have the right to claim anything from the estate. The jury
The appellee testified that in 1860 she notified her brother that she could not continue to labor for him unless he made some provision for payment; he replied that he could not then pay, but would make provision for payment by a will; that he subsequently told her that he had bequeathed the whole of his property to her; and that, a few days before his death, upon being asked by her as to how she was to get her pay, he told her again that he had bequeathed all of 1ns property to her.
The appellants objected to the admission of this last testimony, and asked the court to instruct the jury that it was inadmissible and insufficient for the purpose of rebutting the statute of limitations.
The court charged the jury that they might consider it, and if therefrom they found that the testator, a few days before his death, promised to pay in that manner for the services, that the claim of the appellee was thereby relieved from the operation of the statute.
The appellants urge that the jury were hereby permitted to determine the legal effect of evidence.
The testimony was that the appellee asked for payment of a debt. The jury were instructed that in order to relieve the claim from the operation of the statute it must be proven that her brother promised payment for her services as for a debt due they were not called upon to determine the legal significance either of an allusion to, or of a direct recognition of a debt; they were directed to determine as a matter of fact whether or not, in his answer to an explicit demand for payment, he intended to and did make an explicit promise of payment of a debt due to her by means of his will; and, in effect, they were instructed that nothing less would sustain a verdict. We think that the appellants have no cause for complaint.
There is no error in the judgment; and there should be no new trial.
In this opinion the other judges concurred.
