Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1906-08-10

"a
house for himself and family but in
which the nephew and his wife were
only TO have life estates, the property
then going to the nepheW's children.
And while it is proper argument that
tho making Of these gifts constitute
another reason why the arrangement
relied upon, involving such a generous
benefaction. should not have been made
by the uncle, it not infrequently hap
pens thai the exercise Of generosity
towards one mas the effect Of ncrcas-
ing in the donor desire to continue
his generosity to the same recipient 1t
must b, understood that we are not
deciding whether or not this motive did
in fact exist. We are simply consider
ing the situation and the relations of
all the parties concerned, as bearing
upon the argument that the claim Of
the appellant, and the testimony Of
witnesses in support thereof is so un-
natural as to be incredible.
Balancing then the evidence, prOba-
biiitics, arguments and suggestions on
tue one side and the other, we have
upon the side of the appellant. the evil
dence of two witnesses, diSinterested
except by way Of relationship, direct
ly supporting the contract; the evil
dcncc Of other witnesScs rs to the facts
which have been referred to; the sug-
Ecstions which have been briefly ma.le
IS above, and the verdict Of the Jury
IT, which the question oG feet was sub
mit,,d by the presiding justice. Upon
tie other side, the arguments arising
from the claimed strong improbabilities
y,F I,s. .f.f. ION
We believe. due consideration and
weight To the strong arguments made
by the counsel for tie defense. w, are
Of the opinion that the prepondrrlncc
of al is in favor Of tine appellants
position. The evidence Of the wit
ncSseS has been referred to and To
some extent quoted. - far as the
record disClnses, il is subject to no adj
Verse criticism, there seems TO have
been no confusion, contradiction on
hcsitancy i'm the testimony of these
Witnesses. And ia this connection, il
must b. taken into consideration that
their testimony is of such character
that il must either be true in sub
stahcc or absolutely false. II untrue,
it was perjury ana the result Of sub
OrnatiOn Of perjury. There is no mid
ole ground. There was no opportun-
ity for mistake or miSrecollectiun as
to the cssC ntials of the testimony. il
did not involve matters of estimate or
judgment. 1T is difficult for us to be-
lieve that such 4 conspiracy as must
have existed, if this testimony vas
false, could have been entered into by
and between the appellant, Il proIni-
nent member Of the bar of this State,
of reputable standing in his profession.
and these two important witnesses, al
though one was his brother and the
other Il niece of his wife.
Some reliance toe, as to how much
III every case depends upon the cir
cumStances of that case, must be
placed upon the verdict of the jury.
The trial of an issue of fact submitted
to jury in probate appeal is not
mere useless formality. Such an is
sue is submitted to L jury when it is
believed by the presiding justice that
the answer of the jury will be of value
in determining the truth of the ques-
ton involved. This was peculiarly
case in which the issue of fact should
have been submitted to jury. The de-
termination of this issue involved the
Hl'rIlc3tlOll OIL no rules u liN, IL W d q.
Dure question Of fact, and there APP
pears to be no reason why the jury III
determining that issue should nave
been affected by sympathy, bias or
prejudice.
The value of the arguments Tor the
defence, which have been already stat
cd is impaired to some extent by the
suggestionS that have been heretofore
NJ: de. These arguments are more OF
less based upon view of the question
from a commercial standpoint, from
that standpoint they are almost IRE
eistihle. but as we have seen, the SIT
nation was such that it is fair to be
lieye that Mr.. Bradbury, in making TINS
contract. was actuated by other conSld-
ratiOnS.
After a very careful consideration OF
the case, ana for the reasons stated III
this somewhat lengthy opinion. the on
w excuse for which is, there belnS no
uneSticnS Of law involved the import
auce Of the case. the court Is OF th'
o,iniou that the motion should be de-
MED. The case will be renanded To nlSl
priuS for further proceedings ana Tor j
decree by the justice presiding IN the
court as the supreme court OF probate.
Motion denied.
Case remanded to nisi prius for fur
thcr proceedings.