42 Vt. 658 | Vt. | 1870
Heard at the February term, 1869.
The opinion of the court was delivered by
This case was taken into the county court by appeal from a decree of the probate court for the district of Manchester, allowing and establishing an instrument presented as the last will and testament of one John Robinson deceased. Upon the trial in the county court, the principal point in controversy was as to the mental capacity of the said John Robinson to make a will, at the time when the instrument was executed.
The contestant in his plea alleges that the said instrument ought not to be allowed and established as the last will and testaof said John Robinson: “ Because he says that at the time of the making of said instrument said John was not of sound mind, etc.” To this the proponent replies : “ That at the time of the making, and executing said supposed will, the said John Robinson was of sound mind,” and puts himself upon the country.
In submitting the case to the jury the county court instructed them: “ That in this case under the issue joined, the burden of proof as to the incompetency of said John to make said instrument rested upon the contestant, and that it was for him to make out by a fair preponderance of proof that said John was incapable of making the instrument at the time it was made, in order to defeat it upon that ground.” To this charge the contestant excepts and brings the case before this court, and the only question now before us is as to the correctness of the charge in this respect.
In determining this question it may be well to look at the nature and object of the proceeding in that court, and the true relation of the parties of record to such proceeding. When the case is brought into the county court by appeal from the probate court it stands upon the same ground, and is to be proceeded with in the same manner, as though the county court had original jurisdiction of the subject, and the proceeding had been first instituted there. The judgment of the probate court is vacated by the appeal, and is of no force or effect. The proponent presents the in
In this case the only issue presented by the pleadings is as to . the capacity of the testator, and the fact in this respect must be established by the proponent, even if it is not denied. It would be quite extraordinary if a denial of it should have the effect to relieve Mm from that obligation, and impose upon the party making th¿ denial the burden of disproving it.
On the, trial in this case, upon the issue formed, the proponent
In the course of the trial the balance of testimony may fluctuate from one side to the other, but the burden of proof remains where it was at the outset, and unless at the close of the trial the balance is with the proponent, he must fail. It is not sufficient that the scales stand even ; there must be a preponderance in his favor.
I have thus far been considering the case upon the supposition that there is a legal implication that when a will is executed in due form the person executing it had the requisite capacity. If there is such a presumption, from what does it arise ? Certainly it cannot arise from the fact that the great majority of mankind ■ have sufficient capacity. The law will no more imply capacity from such a cause than it will imply that all men are white because a majority are, or that all men are dishonest because so many are.
But it may be said that it is the duty of the persons called upon to act as witnesses to refuse to act and participate in the execution of a will, if they discover evidence of want of capacity, and that
The considerations above referred to will naturally have more or less effect upon the mind of the triers as bearing upon the probability of the testator’s having the requisite capacity. Beyond this there seems to be no sound reason for giving it effect.
If then we are to hold that there is this legal presumption in favor of the capacity of the testator, it must be strictly upon the force of authority. And although there are some respectable authorities that favor it, we think the weight of authority, especially in the more recent cases, is against it. Any attempt to reconcile the authorities would be useless labor. Judge Redfield, in his valuable work upon the law of wills, seeks to find some common ground that shall be consistent with all the cases, but without success. He concedes that the more consistent rule is the one that casts the burden of proof upon the proponent, both as to the execution and capacity; and it seems to me he might have added, the more sensible rule. I can see no good resulting from the presumption, but room for much evil. There is certainly no necessity for it, as proof on the subject is always accessible, and is presumed
The reason of the rule requiring proof is so strong, that although we have no decision in this state upon the subject, the practice I apprehend is universal in our probate courts, to require of the proponent proof of the capacity of the deceased.
The rule requiring proof has been fully recognized and established in Maine. In Gerrish v. Nason, Whitman, C. J., says : “ The presumption that the person making a will was at the time sane, is not the same as in the case of the making of other instruments, but the sanity must be proved.” 22 Maine, 438. The same rule has been established in Connecticut. In Comstock v. Hadlyme, 8 Conn., 254, Williams, J., says: “ Those who claim under the will must not only prove that the will was formally executed, but that the testator was of sound and disposing mind.’.’ We think the same rule substantially exists in Massachusetts. 2 Gray, 524; 7 Gray, 71.
This subject was very fully considered in The Parish Will Case, 25 N. Y., 9, in which the court held “ that in all cases the party propounding the will is bound to prove to the satisfaction of the court that the paper in question does declare the will of the deceased, and that the supposed testator was, at the time of making and publishing the document propounded as his will, of sound and disposing mind and memory,” and also that this burden is not shifted during the progress of the trial, and is not removed by proof of the factum of the will, and the testamentary competency by the attesting witnesses, but remains with the party setting up the will.
Upon the whole, we think the better rule is that which throws the burden on the proponent to prove the due execution of the will, and the capacity of the person executing it. Such rule is based upon sound reason, and tends to protect the rights of the testator and all persons that are to be affected by the provisions of the instrument; imposes no unnecessary hardship, and ordinarily scarcely an inconvenience upon the proponent, and is well supported by authority.
The judgment of the county court is reversed and the case is remanded.