#### JACOB BUZALSKY and Others v. THEODORE BUZALSKY and Others.1

July 16, 1909.

Nos. 16,175—(86).

New Trial —Issues in Equitable Action Submitted to Jury.

Where, in an equitable action, certain of the issues presented by the pleadings are submitted to a jury, and they return a verdict thereon, the defeated party may apply for a new trial of the issue or issues so submitted, without waiting for findings by the court upon the remaining issues, where the verdict is decisive of the case.

New Trial — Evidence to Sustain Verdict.

Evidence *held*not so clearly in favor of the verdict as to justify the reversal *423of an order granting a new trial on the ground that the evidence did not sustain it.

From an order of the probate court for Steele county allowing tbe will of Jacob Buzalsky, certain of bis children appealed to tbe district court for that county. Tbe case was beard before Buckham, J. At tbe close of tbe evidence tbe court submitted to tbe jury the following question: Was tbe execution of the instrument offered for probate as tbe last will and testament of Jacob Buzalsky, deceased, and offered in evidence on tbe trial of tbis action, procured by undue influence of Frances Buzalsky and Jacob Buzalsky, or either of them? Tbe verdict of tbe jury was “yes” in answer to that question. Proponents’ motion for judgment admitting tbe will to probate notwithstanding tbe verdict was denied, and their motion for a new trial was granted. From tbe order granting a new trial, Theodore Buzalsky, Christina Graboski and Mary Seheymanski appealed.

Affirmed.

*F. A. Alexander*and *John Moonan,*for appellants.

*Leach &*Beigard,, for respondents.

1

 Reported in 122 N. W. 322.

Brown, J.

Jacob Buzalsky died in January, 1908, leaving what purported to be bis last will and testament, which disposed of all property possessed by him at tbe time of bis death. He settled in Steele county about tbe year 1880, with bis wife and four children. One child subsequently died, so that three only of these children survived him. He brought with him and installed in bis home, at tbe time of bis location in Steele county, a woman, named Frances Jowitzky, by whom be bad four other children, one of whom also died, and three survived at bis death. His lawful wife died in May, 1904, and on June 14 of tbe same year be married tbe woman Frances, who survived him and is one of the beneficiaries under tbe will. As we understand tbe record, all children by tbis woman were born before tbe death of tbe lawful wife and while she was a member of deceased’s household. At tbe time of bis death deceased was tbe owner of a farm, consisting of one hundred sixty acres, equipped with farming utensils and live stock of tbe value of several thousand dollars, *424and about $1,300 cash on deposit in one of tbe Owatonna banks. By his will be made ample provision for bis widow, tbe second wife, gave to each of tbe children by tbe first wife $25, and tbe balance of bis estate be divided between tbe children by tbe woman, France's Jowitzky, with whom be intermarried, as already stated, after tbe death of bis lawful wife, and after tbe birth of these children.

Tbe will was duly presented to tbe probate court for allowance, and tbe children by tbe first wife, now full grown and married, interposed a contest and objected to its allowance on tbe grounds (1) that tbe instrument was not tbe last will of deceased; (2) that it was not executed as required by law; (3) if it was deceased’s will, and properly executed, that its execution was procured by undue influence; and (4) that deceased was not at tbe time of sound and disposing mind. Tbe probate court allowed tbe will, whereupon contestants appealed to tbe district court. In that court only two questions were raised: (1) Whether tbe will was properly executed; and (2) if so, whether its execution was procured by undue influence. Tbe second question was submitted to a jury; tbe first being reserved for determination by tbe court. Tbe jury found that tbe will was procured by undue influence, whereupon tbe proponents moved for a new trial on several grounds, among others that tbe verdict was not justified by tbe evidence. Tbe motion was granted expressly upon tbe ground just mentioned. From this order contestants appealed to this court.

It is contended by appellants (1) that tbe motion for a new trial was premature, as it could not properly be made until after tbe court bad disposed of tbe reserved question, viz., whether tbe will was in fact that of deceased, and findings of fact and conclusions of law bad been made and filed; and (2) that tbe evidence conclusively shows that tbe will was procured by undue influence, and that it was error to set aside tbe verdict so finding.

1. There was no error in entertaining tbe motion for a new trial of tbe issue submitted to tbe jury before findings and order for judgment' were made and filed. Tbe verdict that tbe will was procured by undue influence completely disposed of tbe case adversely to tbe eontestees, and tbe case was in precisely tbe situation of an ordinary action after verdict rendered. Tbe court was bound by tbe *425verdict and could not ignore it. Niggeler v. Maurin, 34 Minn. 118, 24 N. W. 369; Reider v. Walz, 93 Minn. 399, 101 N. W. 601. No further findings were necessary to a final judgment, and the motion for a new trial was properly made. In some of the states, under the old chancery practice, where the verdict in cases of this kind is merely advisory, and not conclusive upon the court, findings and order for judgment would be necessary before a new trial could be applied for; but under our statutes the verdict, unless set aside, is final, and may be proceeded against as in other actions. Such was the practice followed in Marvin v. Dutcher, 26 Minn. 391, 4 N. W. 685. We discover nothing in Meighen v. Strong, 6 Minn. 111 (171), 80 Am. Dec. 441, indicating irregularity in this practice.

2. The question whether the evidence is so far conclusive in favor of the verdict as to justify a reversal of the order granting a new trial requires no extended discussion. Motions for new trials on the ground that the verdict is not sustained by the evidence are addressed to the discretion of the trial court, to be interfered with by this court only when the decision of that court is clearly and palpably against the evidence. We have examined the evidence in this ease with care, and, though we find some strong items tending to show the exercise of undue influence over deceased by his second wife, yet we cannot say that, taken as a whole, the evidence palpably sustains the verdict of the jury.

The learned trial judge had the witnesses before him, and was in better position to weigh the evidence, in connection with the circumstances shown, than members of this court with only the cold record before them. It appears — at least, there is evidence tending to show— that deceased in his lifetime made substantial provision for two of the children by his first wife, and that he in fact neglected only his daughter, who, it is claimed, married against his will. To her by his will he gave $25. But mere discrimination between children in the distribution of property by will is no ground for setting the will aside. Deceased was under natural obligations to the children by the second wife, whether born before or after his marriage to her, and the fact that he was partial to them furnishes no ground for invalidating his will. The case is wholly unlike Tyner v. Varien, 97 Minn. 181, 106 N. W. 898. There a second wife persuaded her weak-minded *426husband to will all his property to her relatives, having no claim upon him, to the entire exclusion of his children. A conclusive case of gross undue influence was there made out. Not so, however, in the case at bar. The most that can be said in this case is that the evidence is sufficient to support the claim of undue influence, if approved *by*the trial court, but is far from conclusive.

Order affirmed.