Patten v. Cilley
U.S. Circuit Court for the District of New Hampshire
Proceeding to establish the will of Matilda P. Jenness, removed from the state court. In the issues which are made up under the- direction of the court, the executor alleges that Matilda P. Jenness died leaving a will. The appellant does not expressly put in issue any question as to the mental condition of the testatrix, the fact of the will, or its due execution. His only allegation is undue influence, and upon this the executor joins issue.
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Proceeding to establish the will of Matilda P. Jenness, removed from the state court. In the issues which are made up under the- direction of the court, the executor alleges that Matilda P. Jenness died leaving a will. The appellant does not expressly put in issue any question as to the mental condition of the testatrix, the fact of the will, or its due execution. His only allegation is undue influence, and upon this the executor joins issue. Upon this state of the pleadings the appellant claims the right to open and close, and, by motion in writing, asks that the question be determined by…
1Opinion of the Court
Aldrich, J.,
(after stating the facts as above.') Upon the pleadings as they now stand, the primary burden is upon the executor, and consequently the right to open and close is with him. The executor alleges the death of Mrs. Jenness, and the existence'of a will. Upon these allegations, he holds the affirmative, and is therefore entitled to the open and close. It is claimed by the defendant that this question should be determined by federal rules, rather than any rule of practice in the state courts. In the absence of an express federal rule on the subject, if the right to open and close is…
2Cases cited16 opinions
- Swift v. TysonSupreme Court of the United States · 1842
- Tyler v. . GardinerNew York Court of Appeals · 1866
- Townshend v. TownshendCourt of Appeals of Maryland · 1848
- Delmas v. Insurance Co.Supreme Court of the United States · 1872
- Baldwin v. ParkerMassachusetts Supreme Judicial Court · 1868
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3Cited by1 opinion
- RawleySupreme Judicial Court of Maine · 1919