Appeal dismissed.

Bill sustained, with costs.

Decree of sitting justice affirmed.

VARNEY v. MCCLUSKEY.

(Supreme Judicial Court of Maine. March 6, 1917.)

APPEAL AND ERROR 1002-REVIEW-VERDICT ON CONFLICTING EVIDENCE.

A verdict on conflicting evidence, and depending largely, if not wholly, upon the credibility of the witnesses, should not be set aside on appeal, where it does not appear that it is wrong. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937.]

On Motion from Supreme Judicial Court, Aroostook County, at Law.

Action by Alden J. Varney against John C. McCluskey. Judgment for plaintiff and defendant presents a general motion for a new trial. Motion overruled.

Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, HANSON, and MADIGAN, JJ.

R. W. Shaw and W. S. Lewin, both of Houlton, for plaintiff. Hersey & Barnes, of Houlton, for defendant.

PER CURIAM. This is an action involving the following contract:

"This indenture, made this 19th day of May A. D. 1913, by and between Alden J. Varney, of Hodgdon, Maine, of the first part, and John C. McCluskey, of Houlton, Maine, of the second part, witnesseth as follows, to wit: The said McCluskey agrees to plant on his farm in Houlton, Maine, 25 bbls. or 5 acres of the New Snow potatoes and to sell and deliver to said Varney all merchantable potatoes grown on said 5 acres, excepting 50 bbls. and hold in storage said potatoes until April 1, 1914, said potatoes to be stored and delivered free of cost to said Varney at the nearest railway station.

"And will further agree to deliver said potatoes at any time before April 1, 1914, within two days' notice from said Varney, said McCluskey further agrees to plant said potatoes on his best potato soil and to use one ton of high grade fertilizer per acre and to grow one prize acre, said acre to be measured by three reliable men before it is dug. Said men to weigh each barrel of potatoes grown from said acre, said men shall vouch as to the number of pounds grown on said acre. Said McCluskey further agrees to remove the potato tops from several rows of said acre and have a photograph taken of said rows.

"Said Varney further agrees to pay said McCluskey fifty cents per barrel for said New Snow potatoes than is paid for potatoes for table use, on the day said McCluskey delivers said potatoes to the station. Said McCluskey further agrees to pay said Varney $75, seventy-five dollars, if said Varney fulfills this contract.

"A. J. Varney. "J. C. McCluskey." The plaintiff recovered a verdict for $194.95, and the case is before this court on the defendant's general motion for a new trial. The record discloses conflicting testimony throughout, and on the question whether or not the plaintiff made demand, or gave no

there appears great conflict, so great in fact that the decision of the jury must have depended largely, if not wholly, upon the credibility of the witnesses. The jury having determined that question, we think the verdict should not be set aside, especially as it does not appear that it is wrong.

Motion overruled.

HARVEY v. WILTON WOOLEN CO.

(Supreme Judicial Court of Maine. March 12, 1917.)

MASTER AND SERVANT 288(4)—ACTIONS FOR SERVANT'S INJURY-ASSUMPTION OF RISK SUFFICIENCY OF EVIDENCE.

Evidence showing that employé had worked for several years in woolen mills where the same oily, slippery condition of floors existed as caused her injury, held to justify granting of nonsuit on ground of assumption of risk.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1072.]

Exceptions from Supreme Judicial Court, Androscoggin County, at Law.

Action by Celia M. Harvey against the Wilton Woolen Company. Judgment of nonsuit, and plaintiff excepts. Exceptions overruled. Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, and MADIGAN, JJ.

McGillicuddy & Morey, of Lewiston, for plaintiff. Hinckley & Hinckley, of Portland, for defendant.

PER CURIAM. The plaintiff claims to have been injured in the woolen mill of the defendant by slipping on some oil on the floor and falling so that one of her hands was caught in a revolving pulley. At the close of the plaintiff's evidence the presiding justice granted a motion for nonsuit, and the case is before the court, on the plaintiff's exception to the ruling of the presiding justice. The accident occurred on the 13th of November, 1915, and the plaintiff had been operating the same loom in the same location of the defendant's mill from the last day of July preceding. She had worked in this and other woolen mills as a loom operator for 8 or 9 years, off and on for 15 years, prior to the accident.

According to her testimony the conditions at the time of the accident were no different from what they had been many times, if not continuously, during all the term of her employment. She claims that the oil in which she slipped at the time of the accident came from a coupling in the machinery over the floor, and alleges that the defendant was at fault in not having some receptacle under this particular coupling to catch the oil that dripped therefrom. If her contention is true that the oil did drip from this coupling to the floor, it is clear from her testimony that it was not an un

usual happening. She testifies that the floor around these looms, in this as in other mills in which she had worked, was always greasy and slippery, that on this morning she was hurrying and not thinking of slipping. It is evident that the conditions of which she complains in her writ were known to her during all of the time of her employment, and were not unusual. The conclusion that she assumed the risks of the dangers from which the accident occurred, and that therefore the ruling of the presiding justice under all the evidence presented by her was correct, seem fully justified.

EVIDENCE-SUFFICIENCY.

Evidence held to support finding that the execution of the will was brought about by undue influence by the daughter of the testatrix and the executor.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 421.]

3. WILLS 164(5) UNDUE INFLUENCE Evidence held to support finding that the Questions asked defendants when called as witnesses for the plaintiffs relating to acts and conduct by them subsequent to making of will which tended to show concerted action between them to get the property of testatrix into the possession of one of the defendants, and that the testatrix had been induced to make an assignment and conveyance of all her property to such defendant a few months after the will was executed, and that the executor was proceeding to turn over the property to such defendant under the conveyance without filing an inventory of the estate as executor under the will, were properly allowed as tending to show other steps to make more sure the success of a conspiracy to unduly influence the testatrix to make a will in favor of such de

fendant.

6. WILLS 52(1) EVIDENCE PRESUMPTION PROOF.

Although, if there is nothing at the time of the will's execution tending to show the contrary, the proponents of a will may rely upon the prima facie presumption that the testatrix was of sound mind, when evidence to the con-. trary is introduced by the contestants, the burden is on the proponents to prove by preponderance of the evidence, unaided by the presumption of sanity, that the testatrix was of sound mind.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 101, 103, 104, 108, 109.]

7. TRIAL 194(1)-DISCRETION OF COURTCOMMENT ON EVIDENCE.

How far the court should comment upon the weight being given to facts in evidence is a matter in its discretion so long as that discretion is not abused.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 413, 436, 439, 440, 450.]

8. TRIAL 194(9)-WILL CONTEST-INSTRUCTIONS COMMENT ON EVIDENCE.

The action of the court in telling the jury that the fact that testatrix personally wrote the will was prima facie of very substantial weight and in calling their attention to the claims of counsel as to circumstances which supported or opposed the view that such fact should be given substantial weight was not an abuse of the court's discretion to comment upon the weight of evidence.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 88 453, 456, 463.]

9. TRIAL 260(3)-WILL CONTEST-INSTRUC

TIONS-REQUESTS.

Requests for instructions as to the evidence necessary to show undue influence held sufficiently covered by the charge as given. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 653.]

A given instruction to the effect that undue influence is to be determined by the relative positions of the persons for whose benefit undue influence is claimed to have been exercised and other persons who prima facie would be presumed to be equally entitled to testamentary remembrance, although stated in involved language, held harmless when considered in connection with the rest of the charge. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 708.]

11. WILLS 53(1), 164(1) CAPACITY-UNDUE INFLUENCE-EVIDENCE. The will may be considered both on the question of testatrix's soundness of mind and upon the question of undue influence.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 111, 112, 126, 130, 403, 407, 408, 413.] 12. WILLS 166(5) UNDUE INFLUENCE EVIDENCE-PROVISIONS OF WILL.

An apparent preference for the person in whose behalf undue influence was claimed to be exercised over others equally entitled would tend to support the contestants' claim of un

here is explainable only upon the hypothesis of the fact that is back of it all. And in this case it is claimed that the fact that is back of the entire conduct of Mrs. Walters and Mr. Rockett and Mrs. Keppy, that the fact that is back of their relations, is the desire that her will should be in favor of Mrs. Walters, and that, given those relations that have been proved here before you, you are driven to the conclusion that but for the influence exercised the will would not have been drawn as it was. In other words, an inference of fact is kind of a proceeding from the known to the unknown, or from what you can see, the visible proved thing, to what you do not see, but you are driven to conclude is there nevertheless. Now such inference then may be inferred as fact; but, while this is so, yet such inference is not to be unfairly and unreasonably drawn. The facts and circumstances (that is, out of which the inference is drawn) ought to be of such a nature as to lead justly and reasonably to the inference that such an undue influence existed and was exercised upon the testatrix so that her mind and will were affected by it, and she was led thereby to make a different will from what she would have made had it not existed. I said that, so far as undue influence is concerned, the will itself was to be considered; that is, you consider the will both for the purpose of its bearing, so far as it gives you any light, upon the question of soundness of mind, and also upon the question of undue influence. Now, of course, the question of undue influence, that would be determined by the relative positions under the will that the one for whose benefit the influence is claimed to have been exerted, stand, as compared with others who prima facie may be, would be presumed to stand equally, that is, the preference in this case, the apparent preference of Mrs. Walters to the other two children. Maybe, by way of specific comment on this will, I ought to call your attention perhaps to this, in view of the conceded fact that this will from beginning to end is in the handwriting of Mrs. Keppy.

There are very few wills that are in the handwriting of the testator or testatrix. There may be some, but I dare say that three out of four of you who have made a will, if you were to show it, would not show your own handwriting, except the signature. And your attention is called to that fact as indicating soundness of mind and freedom from undue influence. That fact is coupled with the fact, so far as the witnesses have testified here, that neither Mrs. Walters nor Mr. Rockett were present on that evening until after the will had in fact been signed, I think that was the testimony, and so it is claimed on behalf of the proponents that that is proof positive that she knew what she was about, and that there was nobody exerting any influence over her.

Well, as to that you should consider the form as well as the contents of the will, because, of course, the strength of the argument from the fact that it is in her handwriting, over her signature, from beginning to end, depends upon the hypothesis that it is of her contriving and her formation as well as her handwriting; and you are asked to examine the will from that point of view; that is, that there are certain phrases in there, certain paragraphs which it is said by counsel it seems extremely unlikely that a woman not skilled in law should of her own consciousness, even after long consideration of the will, evolve and write out upon the dining room table, where I think it is claimed she wrote her will, at least where she finished it up. And the claim is made that you are to infer from its form and its appearance, in the absence of specific proof, that that will must have been a copy from some paper that was furnished; and in spite of the testimony of two or three witnesses that she was writing

them testified that they saw no copy there, I do not recollect whether the precise question was put, but as it is left on my mind I have no recollection of any copy being there that she was copying out. The claim seems to have been from the witnesses that she was writing the will there as distinguished from copying it. On the other hand, it is contended by the proponents that there is nothing adverse to be drawn from the form any more than from the content, because it is shown that she had drawn a will before. Where it went to nobody knows; nobody claims to know. But the claim is that she must have had the idea of a will in mind, having executed one years before, and that she looked over the old one, and very likely this remained in her mind as the form to be adopted in the opening and the closing important paragraphs of the will.

At any rate, I just suggest those two points of view, because you have been urged by both sides to so carefully scan that document on various grounds, and the weight that should be given it, because prima facie it would be of very substantial weight. But the weight that is to be given to the will itself must be determined by the conclusion you come to as to the facts and circumstances under which it was executed, and as to whether or not you can find that that, upon the evening in question, was her intent, or whether it was derived from some source that is undisclosed and hidden from us. But as to that, an undisclosed source, I have to tell you what I have been requested by counsel, that you are here really on very serious business, serious to these parties, and you are not to decide the case on mere guesswork, and you are not to decide the case on your notions of what a will should be; but you are to decide it on the evidence, and such reasonable, legitimate inferences of fact as fairminded men, desirous of doing justice between the parties, feel that they are driven to come to from the specific facts that have been proved.

Various witnesses have been asked to give their opinions from their personal observations concerning the soundness or unsoundness of Mrs. Keppy's mind, having been first asked to testify as to their opportunities of observation. The weight which ought to be attached to opinions thus given, of course, varies very widely, according to the circumstances in the case of each witness. It varies not only according to the acuteness, intelligence, and ability of the observing witness, but according to the extent to which the facts and circumstances detailed by the witness as the basis of his opinion appear to bear out and support that opinion. The ability and opportunity of a witness to form an opinion, and the facts and circumstances upon which opinion is based, together with the interest of the witness in drawing certain specific conclusions, are therefore matters to be considered in weighing his testimony. Words and conduct of a testator which on one set of circumstances might appear to be rational and tend to show soundness of mind might under different circumstances seem irrational and senseless, and tend to show an unsoundness of mind. On the other hand, conduct or language which might seem irrational and evidence of unsoundness of mind on one set of facts might on another appear to be entirely consistent with mental soundness.

In considering these questions the jury will consider whether the witness observed, correctly remembered, and faithfully described the circumstances under which the testator spoke or acted, as well as whether he accurately remembered and described the words. Remember, there is a good deal of testimony here on both sides as to what Mrs. Keppy said, not as to the truth of what she said, but what she said as indicating her condition of mind. And there fore what you had to consider as you heard