In Re Estate of Clark

SHAW, J.

This is an appeal from an order refusing to revoke a previous order admitting to probate a certain document as the last will of Bridget Clark, deceased.

It was admitted that the will was duly executed. The only ground of contest presented at the trial was that at the time of its execution the decedent was not mentally competent to make a will. The verdict was against the contestants.

[397]

The only points urged in support of the appeal are certain rulings in the giving and refusing of insti actions.

One of the instructions given was to tin, effect that the will purported to give more than, one-third rf the estate to charitable purposes, and “that the amount by which the sums so bequeathed for charitable purposes exceed one-third of the estate of said decedent will go to the persons and in the proportions in which the estate of said decedent would have descended had she died intestate. ’ ’

The appellant" concedes that this is a correct statement of the law on the subject, but objects to it on the ground that it was directed to a point that was not in issue; that it was irrelevant, and that the jury may have been induced to give a decision against the contestant because of the fact that it informed them that he would receive a substantial part of the estate, even if the will, which gave him nothing, were allowed to stand unrevoked.

The closing instruction was as follows: “Gentlemen, the only issue for you to determine in this case is the question whether or not Bridget Clark was of sound and disposing mind at the date of the execution of the will in question, which was on the 21st of September, 1915, and to that you will answer yes, or no, according as nine of your number conclude.” The court then gave the jury a prepared form of verdict, which the jury answered and returned as follows: “We, the jury in the above-entitled cause find a special issue, Was the decedent, Bridget Clark, of sound and disposing mind on the 21st of September, 1915, at the time of the execution of the will in question? Answer. Yes. Edward A. Dakin, Foreman.”

[1]

Over and over again the instructions repeated the statement that this was the only thing the jury was to decide and that it must be decided from the evidence in the case. The instructions on the subject were complete, elaborate, and clear. We cannot, on appeal, indulge in the surmise that the jury may have disobeyed these elaborate and express instructions of the court, disregarded their oaths to decide the cause from the evidence introduced, and in accordance with the law as given them by the court, and may have gone afield upon an inquiry as to the extent of the estate and the amounts which the interested parties would ultimately receive. The instruction objected to did not direct them to