Mason v. Poulson

Bartol, C. J., delivered the following dissenting opinion: I concur in the opinion of my brothers in all respects, except upon the first bill of exceptions, and as to that, while I agree that the judgment of the Orphans’ Court admitting the will to probate, was not legal, or proper evidence to be read to the jury, upon the issues before them, I do not think, under the circumstances, the ruling of the Superior Court as disclosed in the first bill of exceptions, furnishes any sufficient ground for reversal. We all agree that the appellants are not entitled to a reversal, because the Court below allowed the counsel for the caveatee, to read the probate with the affidavit of Harman, to the Court. That was necessary to enable the Court to understand the question raised by the caveators’ objection, and enable them to decide upon the appellee’s offer; which was an offer ato read to the Court and jury the probate of the Orphans’ Court, and the evidence contained in the record, from that Court, on which the probate was granted.” The Court refused to allow the affidavit to be read to the jury; and afterwards by granting the appel ³⁷² lants’ fifth prayer, instructed them, “that the affidavit of Harman, attached to the paper, was not evidence in the cause proper to he considered, as proof of any fact therein sworn to.” The only error alleged in this hill of exceptions, is that the Superior Court permitted the probate to he read to the jury. I cannot perceive what possible harm could have been done to the appellants by this ruling.

It is stated in this hill of exceptions “ that the fact of the probate of the disputed paper, had been admitted on both sides.” Such an admission imported that the judgment of the Orphans’ Court had been passed in favor of the validity of the will. Reading to the jury the probate itself, was merely stating the same fact, in another form; and it seems to me could have had no effect whatever upon their verdict. It was immaterial to the issues, and although irregular, could do no harm to the appellants, of which they have a right to complain; or which ought to entitle them to claim a reversal. It appears that upon every material question involved, the ruling of the Superior Court was correct.

The case was fairly submitted to the jury, upon instructions free from error; and I do not think their verdict ought to he disturbed, by reason of any thing contained in the first hill of exceptions.