Withee v. Rowe , 45 Me. 571 ( 1858 )

The opinion of the Court was drawn up by

Tenney C. J.

It is provided in R. S. of 1851, c. 63, § 24, that, in appeals from the Judge of Probate to this Court, if, upon a hearing, any question of fact occurs proper for a trial by a jury, an issue may be formed for that purpose, under the direction of the Court, and so tried. This course is analogous to that pursued in equity courts, where a feigned issue is prepared under the direction of the chancellor, or other person who exercises his authority. If the court of chancery is distinct from the courts of common law, and having full equity jurisdiction, the issues thus prepared are sent to a court of common law for trial. 1 Hoffman’s Eq. Prac. 504. In that case, the Court of Chancery passes an order directing when and where the issue shall be tried, and the question to be put in issue, and summitted to the jury. Ibid, 504; 3 ibid, appendix, No. 113. If the parties differ as to the form of the issue, the question is referred to a master for settlement. Ibid, 505. When common law courts have limited equity jurisdiction, feigned issues are often tried by a jury in attendance for the purpose of trying issues of fact, arising in common law proceedings. This is the case, in this State, in matters of probate, and perhaps in those presented in equity suits before them.

When a will has been filed in a Probate Court, for approval and allowance, and the subject comes before this Court as the Supreme Court of Probate, on an appeal from the Judge of Probate, certain questions of fact have often arisen which are controverted. Whether the will was executed by the one whose signature purports to be affixed thereto; whether he was of sound and disposing mind at the time of the execution, are examples. In such cases, it is usual for the Court to direct issues as a matter of course. But, whether the facts in dispute, shall all be settled by the jury or not, is subject to the discretion of the Court, in the exercise of its discretion.

Notwithstanding certain issues of fact may be tried and determined by a jury in probate proceedings, other questions of grave import, of law, and even of fact, may be suffered to remain, to be settled by the Court, and which may materially influence the final decree. Something in the will itself, aside from any thing involved in the issues of fact, tried by a jury, may bear upon the question, whether the will shall be approved or not. The jurisdiction of the Court of Probate in the county, where the decree from which the appeal was taken, may be denied. Another will, claimed to have been executed subsequently to the one in controversy, may be introduced, in relation to which no issue of fact has been made up.

The great question involved, where a will is offered for probate, is whether it is the last will and testament of the person, purporting upon its face, to be the testator. Answers to the questions, in proper form, was it, or not, executed in a legal sense, by the person whose name is affixed thereto ? was he, or not, at the time of the execution, of a sound and disposing mind and memory ? and, was the will attested according to the requirements of law ? are all material elements in this general inquiry. Alb these may bo answered in favor of the party praying that the will may be approved and allowed; and other questions may still demand the attention of the Court, before a final decree can be pronounced.

Upon issues in probate, the law gives no sanction to a relaxation of the fixed rules, relating to a jury trial in common law proceedings. The issues are to be determined by a jury, through a verdict in form, in one case as in the other. The same precision in the issues- made up, and the same direct and exclusive finding of the jury thereon, are required in probate trials as in those at common law. Germand v. Germand, 6 Johns. Ch. 347. No rule of law or practice has dispensed with the mode which has been in use under the latter, to fix with certainty, that the verdict returned and signed by the foreman, is the finding of each member of the panel, when the proceedings are before the Supreme Court of Probate.The law is well settled, that in trials in the court of the last resort, in probate and at common law, the verdict after being returned into court, in order to be obligatory, must be constructively, at least, recorded. Till that is done, any member of the jury may withhold his assent, though he was satisfied of its truths when it was made up and signed by the foreman. To make it binding upon the parties, each juror must signify his approval in open court.

The legal definition to the term “ verdict,” is the answer of the jury concerning any matter of fact, in any cause committed to them for trial; wherein every one of the twelve jurors must agree, or it cannot be a verdict. 1 Just. 226. A privy verdict is of no force, unless afterwards affirmed by a public verdict, given in open court, wherein the jury may, if they please, vary the privy verdict. But the only effectual and legal verdict, is the public verdict, in which they openly declare to have found the issue for the plaintiff or defendant. 3 Black. Com. 377. The verdict is not valid and final until pronounced and recorded in open court. Goodwin v. Appleton, 22 Maine, 453. When a verdict has been returned, affirmed and constructively recorded, the duties of the jury in relation to it, have been fully performed, and their power exhausted; (Snell v. Bangor Steam Nav. Co., 30 Maine, 337,) clearly implying that their duty is unperformed, and the power not exhausted till this is done.

In the case before us, three distinct issues were directed by the Court. They were made up and signed by the counsel for the appellant, and joined by the counsel for the appellee. One of these issues was upon the denial that the will was signed by the supposed testatrix, or by some person in her presence, and by her express direction. Another, upon the denial that she was of sound mind, at the time of the execution of the instrument, and the third was upon the allegation that the will was not duly attested. The case does not disclose that there were other controverted facts involved; and, we do not presume that there were; but such a condition of things is not negatived. But general rules must be applied, unless cases are brought within the principle of some exception. What questions of law may arise in a given case, dependent upon the finding of a jury upon a special issue, which is precise, the jury cannot foresee and know. The point presented by the issue, should be rigidly adhered to in the verdict returned.

The verdict in this case, which was returned, recorded and affirmed, is in these words: — “ The jury find that the said instrument offered as the last will and testament of the said Mary Elizabeth Withee, is not the last will and testament of the said Mary Elizabeth Withee,” and is signed by the foreman. This verdict is not an affirmation that they agreed one way or the other, as an entire jury, upon either of the issues. They have, by the verdict, covered the whole case, under the great question which was submitted on the appeal, and decided the law and fact against the appellee. The case of Coffin, Judge, v. Jones, 11 Met. 45, cited for the appellant, is in point. This was debt on an administration bond. The defendant pleaded, 1st, non est factum; 2d, solvit ad diem, and 3d, solvit post diem. Issues were joined upon each plea. At the trial, the jury found “that defendant is not indebted to the plaintiff in manner and form as alleged in the writ and declaration.” It is said, by Wilde, J., in delivering the opinion of the Court, “ some of the jury might have been of the opinion that the deed had not been executed by the defendant, or that it had been improperly altered, but that no payment had been made; while others might be satisfied with the evidence of the execution of the deed, and also of payment. If the jury were divided in opinion, they could not agree on either of the issues, yet, they would all agree that the defendant was not indebted;” “so that the verdict is substantially defective and uncertain.”

But the counsel for the appellant insists that, in this case, the uncertainty arising from the general verdict is removed by the special findings of the jury. The evidence of these find-, ings is upon a paper, containing, in substance, the question presented in each issue prepared by the Court, answered by the word “Nay,” signed by the foreman and handed to the clerk, who read the questions and answers in open court. But the case finds that the said questions and answers were not otherwise read, recorded or affirmed.

According to the principles already stated, the verdict which was put into form, signed by the foreman, recorded and affirmed, not being a verdict upon the issues, cannot be valid for any purpose, and, therefore, cannot aid the appellant under the special findings. And, if a verdict conforming to the issues, in form, properly verified by the signature of the foreman is ineffectual, unless it is recorded and affirmed, it cannot with propriety be held, that the simple answer in writing signed by the foreman, read in court, without record, or affirmation will be valid.

The verdict cannot now be amended. The written answers of the foreman to the questions proposed have not been shown to have been the answers of each juror, when they were read in Court. Some of them, and even all, may have varied from their first opinion, as they had aright todo; and we have not the evidence, that the law requires, that the opinion was unanimous. There being no verdict in the case, in the legal sense of the term, no foundation for an amendment exists.

The exceptions, therefore, taken to the overruling of the motion of the appellee, on the fourth, fifth, sixth and seventh grounds, as stated in the motion, are sustained; and overruled on the other grounds.

N. D. G-ould was introduced as a witness by the appellant, to give his opinion, touching the handwriting of the signature to the will. He was admitted by the counsel for the appellee to be an expert in relation to handwriting generally. But he did not profess to have any knowledge whatever of the handwriting of the supposed testatrix. The question was put to him, whether in his opinion, the signature to the will was a genuine signature. This was objected to by the appellee, but he was allowed to answer, and testified that he did not think it was the genuine signature of any body.

The question involved in the evidence thus allowed, has been much discussed in courts, and decisions thereon, are not in perfect harmony. But it is believed, that the better opinion, is in favor of the competency of the evidence. In this State and Massachusetts, it is practically held admissible with general uniformity. We think, too, it is admissible on principle.

It cannot be supposed, that a person in making a disposition of his property by will would designedly counterfeit the handwriting of his signature. If an instrument, purporting to be the last will and testament of a deceased individual, should be proved to have the signature in a counterfeited hand, and that by persons who knew well his handwriting, it cannot be doubted, that such evidence would tend to invalidate the will, and would be held competent. If evidence should be offered, tending to prove, that persons of experience in judging of handwriting, could determine with a high degree of certainty whether handwriting of a person of whom, and of whose handwriting they were entirely ignorant, was natural or simulated, we see no reason for excluding the evidence as relevant to the issue. If it is proper in the testimony of an expert, who has knowledge of the handwriting of the person, whose supposed signature is denied to be genuine, we see no legal ground for its exclusion in the other case. An expert in analyzing the blood which has stained white cotton cloth, has been allowed to testify, that a distinction can be detected between the blood of human beings and that of some other animals; and have been permitted to testify accordingly. State v. Knights, 43 Maine, 11. This has been allowed on the same principle, that physicians and chemists have given opinions touching the presence of arsenic, prussic acid and other poisons in the human system, even from the effects of each, as determined by skill and experience. And certainly with no less propriety was the evidence in question held admissible.

We do. not doubt, that Elias Merrill, under the evidence offered, was properly regarded as an expert, and as such, permitted to give testimony. No objections were made to the opinions expressed by him, but the rulings were only in relation to his being allowed to testify at all, as an expert.

■ The- questions put to the witness, "who testified to the execution of the will, we think, were not objectionable, under the remark of the Court, that being upon collateral matters, the answers could not be contradicted, but must be received as true. The truth of the statements which were relevant, introduced by the appellee, could be tested to some extent in the same manner. Exceptions sustained.

Rice, Hathaway, Appleton, Cutting, and Goodenow, J. J., concurred.