In re Hopkins' Will

On the outset the contestant asked to open, in that he had the affirmative. The executor made like request for the same reason. The court ruled with the executor, and she opened and closed the case. I am of opinion that the exception to this ruling was well taken, and that the judgment should be reversed.

In the Surrogate’s Court the will was admitted to probate. We affirmed the decree. The Court of Appeals remitted the proceedings for a„trial before a jury in the Supreme Court .to determine whether the will in question was revoked by the testator. In re Hopkins’ Will, 172 N. Y. 360 , 370, 65 N. E. 173 , 92 Am. St. Rep. 746 . The remittitur reads that the proceedings be “remitted to Westchester county for a trial before a jury in the Supreme Court to determine whether the will in question was revoked by the testator.” When this contention to open the case arose, the trial court had before it this remittitur and the order of the Surrogate’s Court based thereon. In Heilbronn v. Herzog, 165 N. Y. 98 , 58 N. E. 759 , the court, per Werner, J., say:

_ “It is the well-settled rule in this state that the party holding the affirmative upon an issue of fact has the right upon the trial to open and close the proof, and to reply in summing up the case to the jury. This is regarded as a legal right, not resting in the discretion of the court; and a denial thereof may be excepted to, and the ruling reviewed upon appeal. Millerd v. Thorn, 56 N. Y. 402 ; Merzbach v. City of New York, 163 N. Y. 16 [ 57 N. E. 96 ], The general rule upon this subject is that, if the plaintiff, without giving any evi

dence, is entitled to recover upon the pleadings, the affirmative of the issue rests with the defendant.”

In L. O. N. Bank v. Judson, 122 N. Y. 278 , 25 N. E. 367 , the court, per Bradley, J., hold that the defendant who wishes to open and close may plead so as to present no issúe upon any of the plaintiff’s essential allegations. “If the defendant fail to do that, no matter how little proof the remaining issue may require, or how easily or in what manner it may be established by evidence, the right of the plaintiff to open and close is not denied to him. Mercer v. Whall, 5 Ad. & El. N. S. 447.” Werner, J., rests the general rule in Heilbronn v. Herzog, supra, upon L. O. N. Bank v. Judson, supra. This was a trial judicially limited to a single question—revocation. The will is in existence. The signature is canceled by 14 almost-perpendicular ink lines drawn across it. This may or may not constitute revpcation, and the purpose of the trial was to determine that one question. The fact that there is a question of revocation implies that there may not have been revocation. A verr diet that there was no revocation would leave the will unrevolced. The presumption is that the cancellation was subsequent to execution. 1 Jarman on Wills (Randolph & Talcott Ed.) p. 304. As I have said, the isolated fact that the signature to the paper was canceled is not enough to establish even a presumption of revocation. There is no presumption from the mere existence of the will that it was last in the possession or the custody of the testator. Hence, before even a presumption of revocation could be raised, it must be shown that the will, when found in the testator’s possession or custody, was there found thus canceled. In re Hopkins’ Will, supra. See, too, Williams on Executors, vol. 1, 208; Greenleaf on Evidence (15th Ed.) vol. 2, § 681, note 7, citing cases which mark the distinction. Upon the issue thus defined, if neither party had offered evidence, which would prevail? Surely not he who asserted revocation, for as much as the cancellation of the signature was not enough, even, to raise a presumption that it was by the hand or at the instance of the maker of the will. As we have seen by the excerpt from the opinion in L. O. N. Bank v. Judson, supra, it is of no moment how little proof may be required, or how easily it may be forthcoming, or in what manner. He who must produce it has the right to open the case. In Patten v. Cilley (C. C.) 46 Fed. 892 , the court, per Aldrich, J., in discussing this very question, say: “And by the term ‘holding the affirmative’ is intended the primary affirmative.” Wharton on Evidence (section 894) says: “It is further clear that the burden of showing that a once valid will has been revoked by mutilation will lie upon the party who undertakes to prove the revocation,” citing authorities. And see Patten v. Cilley, supra; Farrell’s Adm’r v. Brennan’s Adm’x, 32 Mo. 328 , 333, 82 Am. Dec. 137 ; McClintock v. Curd, 32 Mo. 411 ; Higgins v. Carlton, 28 Md. 115 , 143, 92 Am. Dec. 666 ; Edelen v. Edelen, 6 Md. 288 ; In re Singleton’s Will, 8 Dana, 315 ; Behrens v. Behrens, 47 Ohio St. 323 , 25 N. E. 209 , 21 Am. St. Rep. 820 ; Jones v. Jones, 137 N. Y. 610 , 33 N. E. 479 ; Bailey on Onus Probandi, who cites some of these cases.

The learned counsel for the respondent says that “the general rule as laid down in the text-books is that in all controversies of this character the right to open and close lies with the proponent of the will,”

The learned counsel for the respondent insists that the contestant waived his right by this request: “I ask your honor to charge that the burden of proof is upon those proposing the will, namely, Mrs. Hopkins, to show that the marks on the signature were not made by Robert E. Hopkins.” This was charged. The exact language of the request is important. It is not as to the burden of proof on the whole case, but as to the burden of proof of showing that the marks on the signature were not made by the testator. It is true that the executor proved a prior and vain search for the will, but she thereafter proved by Mr. Warren that he finally found the will in a drawer of the testator’s desk, in its present condition; i. e., with the ink marks across the signature. This, then, was evidence offered by the executor that the will in its present condition was last in the possession of the testator. Hence arose the presumption that the cancellation was by his hand, or at his instance (In re Hopkins’ Will, 172 N. Y. 363 , 65 N. E. 173 , 92 Am. St. Rep. 746 ); and, consequently, while the burden of proof upon the whole case never shifted, yet there arose the necessity of evidence on the part of the executor tó show that the marks were not made by the testator. But assume that the request referred to the burden of the issue itself. The court had theretofore in effect ruled that the executor bore this burden when it gave to her the right to open the case. The

“It is also contended that the appellant waived its right to insist upon the alleged errors in this court for the reason that its counsel asked for an in-' struction to the effect that the burden was on the plaintiff, and they must believe from a preponderance of the testimony that the fall of the building,” etc. “The court had decided that such was the law of the case, and the defendant, having reserved his exception, was not required further to insist that his client had assumed or was entitled to the burden. He was left no other ground on which to base his defense, and was compelled to acquiesce.”

The right sought was substantial, and the denial thereof was error. L. O. N. Bank v. Judson, supra, citing Conselyea v. Swift, 103 N. Y. 604 , 9 N. E. 489 . The judgment should be reversed, and a new trial granted.

Order denying contestant’s motion -to set aside the verdict and for a new trial reversed, and motion granted; costs to abide the final award of costs. All concur.