Collins v. Sullivan

Department No. 2, Myrick, J.: This is an action to set aside a deed executed by plaintiff to defendant. Thomas Collins died, leaving real estate to the value of about $8,000. A paper, purporting to be the will of deceased, was offered for probate. By the terms of the will, the property was devised to defendant, who was named executor. Plaintiff was the father and only heir of deceased. There was a contest in the Probate Court as to the validity of the will, made by a nephew. The jury failed to agree. Thereupon defendant sent his son to Ireland, the residence of the plaintiff, and obtained from him a deed of the real estate, paying him therefor $500 ; and this suit is to set aside that deed. Evidence was offered upon both sides as to what transpired relating to the execution of the deed. The Court found that the deed was not obtained by fraud, or any false or fraudulent misrepresentations whatever, or undue influence. Hot only are we concluded by that finding in this Case, there being a substantial conflict in the evidence, but we are of opinion that the evidence sustains the finding.

Plaintiff, on the trial, offered to prove by jurors that on the trial in the Probate Court, upon the first ballot, nine of the jurors were against the validity of the will and three in favor ; and on a subsequent ballot eleven were against and- one in favor—not for the purpose of affecting the proposed will, but for the purpose of. enabling the Court to arrive at the probable value of the property “ with what might be a cloud on the title.” Plaintiff also offered to prove by several witnesses, dealing in real estate, that they knew Thomas Collins in his lifetime: knew the property and the contest,, and what they would be willing to pay for the property “ with the will as a cloud upon it.” This testimony was objected to, and the objection sustained.

We do not see how any of this testimony was admissible. It is quite immaterial in this case how the jury stood in the Pro[241]bate Court. On the next trial they may all be for the will or against it, as the proofs shall be made.

The jurors were not called to testify as to the facts, but as to their deductions from the testimony given ; and their opinions were entitled to no more weight than those of any other twelve persons of equal intelligence. We do not know of any rule by which the value of real estate, as affected by a lawsuit, may be proven. The law knows of no such experts. Such testimony can be nothing more than mere guess. We see no error in the record.