Brennan v. Cassidy

The only error assigned in this appeal is that the trial court erred in charging the jury as follows: “To sustain the will and codicil you should be satisfied by a preponderance of proof upon the whole testimony, taken in connection with the presumption of sanity which exists in favor of every person and which is of probative effect in favor of the will and codicil, that the testatrix, at the time of their execution, possessed testamentary capacity.”

The question first arose upon a motion to set aside the verdict because of this instruction, admittedly erroneous. The trial judge declined to do…