This is an appeal from a decree of the judge of probate, affirming the last will and testament of James Carvill. The case comes before us on a motion to set aside the verdict. The evidence as reported, embraces four hundred and seventeen pages.
No exceptions have been taken to the rulings of the presiding judge as to the admission or exclusion of evidence, or to the principles of law as stated in his charge to the jury.
The jury found that the testator at the time he executed the instrument, purporting to be his last will and testament, was not of sound mind. The evidence upon that branch of the case, in our judgment, negatives the correctness of that finding. But the jury found that the testator was induced to execute the will in question, by undue influence. The evidence bearing on this issue was submitted under correct instructions to the jury, and we do not think it so preponderate^ in favor of the proponent, as to demand our interference on the ground that it was the result of bias, prejudice or mistake on their part.
It has been argued that the case is not properly before us. By E. S., c. 63, § 26, an appeal may be taken from the probate *139court to this court, and this court may reverse or affirm the proceedings of the probate court, and " or take any order thereon, that law or justice may require; and, if upon such hearing, any question of fact occurs proper for a trial by jury, an issue may be framed for that purpose under the direction of the court, and so tried.” This was done.
The trial by jury was had. All the incidents of such trial follow. A foreman must be chosen, unanimity is required. The verdict may be wrong. A motion may be filed for a new trial. The rulings of the presiding justice may be erroneous. Exceptions may be alleged, This must so be for the furtherance of justice, for wrong verdicts, whether from the mistaken judgment of the jury, or induced by the erroneous instructions on the part of the judge should be corrected.
By E. S., c. 77, § 13, motions for new trial upon evidence reported by the presiding judge, bills of exceptions, &c. come before the law court, and it matters little in what class of cases the jury trials were had. Whenever a jury trial is had, there may be a motion or exceptions for the correction of errors, whether of the court or jury.
It was the duty of the proponent to present the will for probate. He would have been liable to punishment for not so doing in case of its suppression.
By E. S., c. 63, § 2, costs may be allowed to either party to be paid by the other, or to either or both parties to be paid out of the estate, as justice requires. Under all the circumstances of the case, we think the verdict of the jury should stand, and the costs of both parties be paid out of the estate in controversy.
Motion overruled. Judgment on the verdict. The decree of the probate court reversed. The instrument pxirporting to be the last will and testaxnent of James Carvill disallowed and rejected, axid he be decreed to have died intestate, and the case x'emanded to the probate coux't for further proceedings. Costs of both paxdies to be paid out of the estate.
Walton, Barrows, Danforth, Yirgin and Symonds, JJ., concurred.