Opinion
No. 3128.
Decided December 5, 1939.
The executor has the burden of establishing by a preponderance of evidence that the instrument offered for probate is a valid will.
Where on the issue of devisavit vel non evidence of the contestant is not sufficiently substantial to justify the inference that the testator executed the will after and not before the signing by the three witnesses the presumption as to regularity subsists and the question of irregularity in the order of signing should not be submitted to the jury.
A probate appeal should not make the judge of probate a party but be in the name of the executor against the decedent's heirs.
PROBATE APPEAL, from a decree allowing a certain instrument as the last will and testament of one Edward Daley. A trial by jury on the issue of mental capacity resulted in a verdict sustaining the will.
At the close of the proponent's evidence the contestants, without offering any evidence in their own behalf, moved that a verdict be directed for them "on the ground that the instrument that has been offered is not a Will, that the evidence submitted does not show that the requirements of the statute have been complied with as to the manner and method of execution of an instrument in order to constitute such instrument a Will; that the testimony indicates that the alleged testator signed his name last to the instrument, that the first name signed upon the instrument was that of the late Mr. McDonough [he was the scrivener who drew the purported will and one of the witnesses to it] and that the order of signing by the other supposed witnesses to the Will is left uncertain." This motion was denied and the contestants excepted.
Transferred by Connor, J.
William H. Sleeper and James M. Jackson (Mr. Jackson orally), for the executrix.
Samuel A. Margolis and Daniel J. O'Connell (of Massachusetts), (Mr. Margolis orally), for the contestants.
The case is wrongly entitled. The Judge of Probate is not a party to proceedings of this sort. This appeal should be in the name of the executrix against the decedent's heirs. Judge of Probate v. Daly, 88 N.H. 477.
The executrix, upon whom rested the burden of establishing by preponderance of the evidence that the instrument which she offered for probate was a valid will (Albee v. Osgood, 79 N.H. 89; Bartlett v. McKay, 80 N.H. 574; Gaffney v. Coffey, 81 N.H. 300), opened the trial by calling to the stand or accounting for the absence of the three persons whose names appeared as witnesses to the document. This order of procedure is in accordance with the approved practice in this state. Whitman v. Morey, 63 N.H. 448, 455; Patten v. Cilley, 67 N.H. 520, 527, 528, and cases cited.
She submitted evidence that Dennis McDonough, one of the witnesses, was dead, and she then introduced evidence to prove the authenticity of his signature. This proof, coupled with the appearance of the instrument as having been executed with the formalities required by law, is competent to be submitted to the jury on the issue of the due execution of the will. Perkins v. Perkins, 39 N.H. 163, 169; 3 Wig. Ev., (2d ed.) s. 1511. The executrix then called the two surviving witnesses to the stand.
The first of these, after stating that the testator signed in the presence of all three witnesses and that each of them signed in his presence and in the presence of one another, testified that she had no memory at all as to the order in which the signatures were written. Her testimony is to a failure of memory, and as such it obviously has no tendency to prove that the testator did not sign first in accordance with the usual practice in such matters.
The second surviving witness testified "As I remember, as I remember Mr. McDonough signed it first." Upon objection by counsel for the contestants this answer was stricken from the record and the witness in response to a question regarding the time when the testator signed said: "Well, I couldn't say for sure, but it seems to me he signed it last." Later in her examination she admitted that when she signed she did not look to see if the testator had already affixed his signature, but said "As I remember, Mr. Daly signed last." Again she testified: "Well, I am really not very clear as to who did sign first," and finally, in response to the question: "Now do you know, do you actually remember whether Mr. Daly signed before or after the witnesses?" she replied "No, I don't." On cross-examination when she was asked: "Mr. Daly was the last one to sign the paper?" answered "I'm not quite clear." The testimony of this witness, if a little more favorable to the contention of the contestants than that of the former one, still is not in our opinion sufficiently substantial to require further proof by the executrix of due execution. Since it is inadequate to satisfy the contestant's burden of going forward with the evidence (Gaffney v. Coffey, 81 N.H. 300, 306) the presumption of fact of regular execution subsists (Edgerly v. Edgerly, 73 N.H. 407) and from this it follows that the court below was correct in refusing to submit the issue of proper execution to the jury.
There being no legally competent evidence that the testator signed last, it is unnecessary for us to decide the question of whether or not under our statute (P. L., c. 297, s. 2) a will is properly executed when the signature of the testator is affixed after the witnesses have signed in attestation.
Exception overruled.
All concurred.