The first exception is stated as follows :
"The said Torrey denied that.Samuel P. Hitchcock had suffered loss by endorsements for his brother, James P. Hitchcock, and maintained that the assumption of such a fact in the alleged will was without foundation in fact; that the alleged will having been made under a delusion in that regard, that legacy did not express the real will of the alleged testatrix; that in fact, if the will was made by the alleged testatrix when of sound mind and memory, that provision had been induced by false and fraudulent representations of said Blair and said Samuel. He contended that the burden of proof was on the proponent to satisfy the jury of the truth of the fact thus assumed.
" But the judge presiding ruled that as the alleged will stated, the alleged fact, it must be considered true unless the appellant had satisfied the jury that it were not true.”
*550Clearly an argument adverse to the alleged will cou Id not be drawn from its mis-statement of fact until it was first proved that the fact ivas mis-stated therein. The exception alleges the contestant to have been the party who denied the recital in the will; who maintained that the assumption (in the will) of loss sustained by Samuel P. Hitchcock by indorsing for his brother, James P. Hitchcock, was without foundation ; and affirmed that the testatrix was under a delusion in that respect induced by false and fraudulent representations which had been made to her.
There was nothing to support this claim, until some evidence was offered to disprove the recital of fact which the will contained. Upon the issue, as the exception states it, the burden of proof ivas upon the contestant. It was for him to establish the facts which he sought to urge against the probate of the will. The ruling, therefore, was correct.
The second exception, which is insisted upon but not argued by the counsel for the contestant, is as follows :
"The said Torrey among other things requested the judge to instruct the jury that if the alleged testatrix was of sound mind and memory at the time when the alleged will Avas made, and yet Avas suffering so much from pain that she could not fully and deliberately consider what she Avas doing, she could not make a will.”
This request assumes that suffering from pain may destroy testamentary capacity, even while soundness of mind and memory remains. It could not properly have been given. The jury were instructed as to the capacity necessary to enable one to make a will in terms to which no exceptions are taken.
After full examination of the case, it is the opinion of the ■court that the exceptions and the motions for new trial should be overruled. The evidence in support of the latter does not present a case, in which (under the rules of law applicable to such motions) a new trial should be granted on the ground that the verdict is against evidence, nor for newly discovered eiúdence.
It is unnecessary to consider the question whether the laiv ■court has jurisdiction of the motion to disallow the will, not-withstanding the verdict, and to reverse the decree of the probate *551court, admitting it to probate; as we are satisfied that upon the evidence such motion should not prevail.
Exceptions and motions for new trial overruled.
Barrows, Daneorth, Yirgin and Libbet, JJ., concurred.