Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1912-12-10

! said petition does not ailege in what par
| of the State said petitioners lived at the
| Harriet A. Monroe or at the time of the
/ presentation of her will for probate OF
! at the time of the probate thereof
/ 6. Because there is nothing in said pc
| titlon to show that the petitioners die
not have such knowledge within 20 day!
| after the probate Of said will (I1eb. p
| lslD so that they or either of them nigh
| have appealed to the supreme court Of
| probate within that time if they or ht
/ had SO desired
In Gurder, Appellant. 1O1 Maine. IS, in
| volving motion to dismiss. the court
/ held: This is In effect demurrer lr
| passing upon the issue thus raised al
! the allegations in the appeal and reasons
] of appeal must be taken as true" Al
the threshold, therefore, is raised the
] question whether this petition is sufh-
| cient, assuming every statement to be
! true, to give the supreme court of pro-
| bate jurisdiction to hear the evidenc,
for the purpose of determining the atles
! ton of fact, whether Justice REQUIRED
| such revision of the decree, as woule
authorize the appeal to be entered and
| prosecuted. The language of the statute
r. 81 Chap. S., Sec. 80, authorizing this
appeal is: If any such person from
accident, mistake defect of notice, or
otherwise without fault on his part,
omits to claim or prosecute his appeal,
as aforesaid the supreme court. if justice
requires a revision, may, upon reasonable
terms, allow an appeal to be entered
The first objection is not a ground for
dismissal, as it is not a iurisdctional
fact. The fourth and sixth are not
grounds for dismissal as they are OBJ
Waited by averments in other paragraphs
of the petition and go to matters of
proof rather than averment.
Under the rule of liberal Interpretation
in this class of cases, il Is the opinion
of the court that the petition was suffi-
eient to authorize the court TO proceed
to hearing thereon. Upon this con-
clusion 1t becomes unnecessary to con-
slider the exceptions to the allowance of
the amendment
Exceptions to the dismissal of the PEI
tition sustained
Cora Williams, Extrx. vs. Maynard S.
Williams. ReScript. Cornish, j.
This is an action of troYel brought by
the executrix of the last will and Tesla
nient of Warren g. Williams to recover
from the defendant the sum of SIS $50
with interest The testator. Warren e..
Williams, the defendant, Maynard S.
the children Of Timothy Williams and as
his heirs at law were the owners in
common of certain lime quarry in
Roekiand which in March, 1900 was con-
veyed to the Rockland- Rockport Lime
Co. for the sum of $50 go. one-third of
which belonged to each of the three
heirs.
the defendant who was the active agent
in making the sale, and on March 49,
1900, was deposited by hi min his own
name with I<idder, Peabody & Co. OF
Boston. with the full consent of his
brother and sister.
Warren G. Williams died intestate in
1910, and this suit is brought by his
wife, the executrix. who claims that the
defendant never paid over to her hus-
band the portion that was due him, and
seeks to recover the same with interest,
in this action while the defendant
claims that he paid the testator in full.
nra-half SQ27a Sent 10 1901 and the
reamining one-half, $93l5 on April Is,
1868. In support of his contention, he
presents two rescripts pnrporting to be
signed by Warren G. Williams. bearing
those dates and Cor those amounts.
A verdict having. been rendered for the
defendant, and motion for new trial and
exceptions having been filed by the
plaintiff, it is held:
MOTION
/. That the sis.750 belonging to Warren
G. Williams, having been admittedly re-
ceived by the defendant, the burden
rested upon him to prove its payment &c
the owner. rs
?. That the transactions, as related by
| the defendant, are so at variance with
the usual course of business as to be
| well-nigh inherently incredible. The al
legged payment by the defendant 70
Warren of s9375 in bills on September 10
1901 and 1886 again in bills on April Is,
1903 instead of by checks as all other
payments between the parties had been
made. the lame explanation of the rea-
son for so doing, and of the sources from
which the bills had been obtained, de-
PENDANTS keeping the money idle Tor q
long time awaiting a payment WhicH
: had not been demanded the payment OF
exactly oHe-half the principal IN eacn
instance without mention OF accrued M
terest taken into. consideration with an
the other circumstances of the case, rem
der the defendants contention unsatis-
factory and unconvincing.
g. That the evidence concerning the
.fr.ttg ~. n
heavily in favor of the plaintiff. An in
spection of the receipts themselves, their
remarkable similarity as to form, paper
and ink, although purporting 70 nave
been made more than year ana a nan
apart, the similarity of the two sigma
lures when one is superimposed one, upor
the other, the freshness OF the INK, al
though alleged to be about 10 years old
The change in appearance of the ink
which took place in short time alter
the receipts We're filed in the probate
court, a change which could~not nave
= occurred had the signatures Deeh dc'
tuaIiy written 10 years before, togetnel
with the expert testimony, lead to th'
conclusion that the receipts are not gen
/ In the face of all this evidence, thu
verdict for the defendants was so clearly
wrong as to indicate bias or preludic'
/ on the part of the jury or a laliufe y
EXCEPTIONS.
/. That the testimony of witness Y
| the fact that Warren q. Williams ha'
1 borrowed small sums from him durlns
the past 10 years was admissible put IL
| exclusion was not prejudiclal error "a
| other evidence tending to prove u,
| same general financial condition was ao
mitted and was uneontroverted.
| 2. That the exclusion of the testimon.
of Warrens attorney was without erro
| as a part tended to prove self-servni
| act and the remainder involved Neithe
the opinion of the witness or deelafa
ton of Warren in his own behalf.
That the exclusion of the exper
Testimony offered by the plaintiff I
prove to the court that certain exhioit
offered by the defendant as standards Q
the handwriting of Warren were nc
themselves genuine, was-errorA and I'M
| exception should be sustained
The genuineness of standard is a prs
liminary question to be Determined b
the presiding Justice and his decision
final unless il Is made clearly to appea
that ii was not justified or that 1t wa
based upon some error in law.
| That the court having received IN
| opinion evidence of the defendant hin
| self as TO the genuineness OF ceTtal
standards offered by him, he should b.
| fore rendering his decision also nave II
| ceiyed the expert evidence offered by u
plaintiff to the effect that these standare
| wre not genine, basing their opinion upe
a comparison with other STANDARDS q
| ready in the case and admitted TO |
s. The refusal of the presiding mstit
| .,I,..,,t tl,,,i itrtv 40 examine the 4,