Havelick v. Havelick

Wright, Ch. J.

1. Will: practice. I. The Revision (§ 2829) declares that wills proved and allowed by the County Court are to be carried into effect; and such allowance shall jjg taken as evidence of the due execution of the same, unless set aside by an original or appellate proceeding in the District Court. The petitioners were, therefore, not confined to their appellate remedy after the allowance of the will by the County Court, but could properly commence this their original action to set the same aside.

2. Practice: exceptions. II. Appellant in argument objects to the refusal of the court to give certain instructions. To such refusal there was 110 exception at the time; and we cannot, therefore, consider the correctness of such refusal.

*416

3. New trial: verdict against evidence.

*415 III. Was the verdict against evidence? Not so clearly •so as to warrant a reversal. There was a mass of testimony, *416 some of it conflicting, upon a subject frequently very difficult to determine. That the jury might not have reached fairly and consistently the opposite conclusion, may be readily admitted. But the most that can well be claimed is, that the case, upon the testimony, is one of doubt, and the verdict cannot, therefore, be disturbed.

IY. The judgment is not as formal and full as it should be. This, however, is not a matter of which defendant can complain.

The order below is therefore affirmed, with instructions to the court below to enter judgment in terms setting aside said will and allowance.