Buckminster v. Perry

Upon an appeal from a decree of the Probate Court approving a will, the will is to be proved in this Court, as if the question had originated here; and the appellee, having the affirmative, is to open and close.

This was an appeal from a decree of the judge of probate for this county, proving, approving, and allowing, the last will and testament of Abel Perry, deceased. * The question being on the sanity of the testator, [ * 594 | and the Court having directed an issue to the jury, the counsel for the appellants inquired of the Court in what manner the question was to be brought before the Court and jury, as it appeared that two forms had been heretofore used. (1) The Chief Justice said the proper form was for the appellants to make their objection in the manner of a plea, to which the appellee was to reply. The will, he added, is to be provided ab initia on the trial, as if the question had originated here ; and as the appellee was to have the affirmative side of the issue, he would open and close. The appellants, on the trial, relied on the circumstance of the testator’s not having disposed of all his real estate by his will, and the testimony of two or three witnesses, who were of opinion that the testator was much broken, and very forgetful about the time the will was made; and they testified particularly to several slight instances of a want of recollection. But all the subscribing witnesses were very positive that, at the time of executing the will, the testator was of sound mind.