Clapp v. City of Burlington.

respective states for the assessment and collection of the taxes, any further than to prevent an unjust discrimination against the stockholders in the national banks. The general government could have no interest, or object, in determining into the treasury of which particular municipal government, within the state, the taxes should go, after they have been properly assessed and collected; and we are not disposed to put a construction upon the act that would convert it into such an attempt. In the provision referred to, congress is speaking of the powers of the respective states over the stock in these banks, in respect to taxing the owners, and its object was to secure equal and just taxation. The language used in respect to the authority to tax should be construed to refer to the action of the state legislatures, when it is susceptible of such a construction, rather than to the action of the officers of the several municipal corporations within the states. By so doing, all is accomplished that Congress designed, and the states left to regulate their own system of taxation, in their own way, without the unnecessary, not to say offensive, interference by congress therein. Congress could have no possible motive in determining in what particular town in this state the owner should be taxed for this stock; all that it desired was, that it should be placed upon the same footing with other property of a like character in the state, and owned by the residents thereof.

It was probably considered desirable that the new system should recommend itself to public favor, and to that end it was doubtless thought best, while securing equal taxation, to leave the form and manner of doing it, and the disposition of the money raised thereby, to the respective states; that is, to interfere with the authority of the states only so far as was necessary to accomplish the object. This question was recently decided by the supreme court of Massachusetts in Austin v. The City of Boston. The case will be reported in the next volume of Allen. The proof sheets are before me. Judge HOAR, in delivering the opinion of the court, says: "The court are all of opinion that the true construction of the proviso does not confine the assessment of the tax to the place where the bank is located, and that it merely requires that the tax, to be valid, shall be imposed under the state authority existing at the place where it is thus located." Again he says: "We therefore thir.k that the reference in the proviso to the place where the bank is located was designed to define the state authority which was to be allowed to impose a tax, and not to limit the place of assessment.

Williams v. Robinson.

By this construction we avoid a question of great difficulty in regard to the constitutional power of congress to direct or regulate the mode of state taxation.

In Markoe v. Hartranft, decided in Pennsylvania, the decision is substantially in accord with our own, although the views expressed by Judge AGNEW in some respects differ from those above. The case of The City of Utica v. Churchill, et al. is not an authority in this case, as it was decided upon the statute of that state, it being eld that the taxation was in violation of their statute.

A majority of the judges of the supreme court of Maine, in answer to a question put to them by the governor, as to a bill then before the legislature, put a different construction upon this proviso, but gave no reasons for their opinion expressed.

On the whole, we think the decision in Austin v. The City of Boston, is in accordance with principle and reason, and with the views expressed by Judge HOAR we entirely agree.

This view renders it unnecessary to consider the other questions raised in the argument.

The judgment of the county court is affirmed.

WILLIAMS, executor, v. ROBINSON, appellant.

(42 Vt. 658.)

Wills-probate of—burden of proof.

The burden is on the proponent of a will, not only to prove the due execution thereof, but also the testamentary capacity of the testator.

APPEAL from the decree of the probate court, admitting to probate the instrument in question, as the last will and testament of one John Robinson, deceased. The contestant alleged, that the deceased, at the time of making said instrument, was not of sound mind, etc.

The proponent introduced evidence to prove the due execution of the instrument as a will, and tending to prove the testamentary capacity of the deceased, at the time of the execution thereof. The evidence of the contestant tended to show that the deceased was not of a sound and disposing mind. The judge charged the jury, sub

Williams v. Robinson.

stantially, that the burden of proving incapacity on the part of the deceased was on the contestant. The jury returned a verdict in favor of the proponent, and the contestant appealed.

II. H. Wheeler, for the contestant, to the point that the burden of proof as to capacity was on the proponent, cited 2 Bla. Com. 374376; Harris v. Ingledew, 3 P. Wms. [93] 1730; Wallis v. Hodgeson, 2 Atk. 56; Hindson v. Kersey, 4 Burn. Eccl. Law, 93; 2 Jarm. Wills (Perkins' ed.) 222; Warner v. Warner, 37 Vt. 356; Gen. Stat. 379, §19; Thornton v. Thornton, 39 Vt. 122; 1 Cust. 637; 1 Red. Wills, 41, 44, note 30; Comstock v. Hadlyme, 8 Conn. 254; Phelps v. Hartwell, 1 Mass. 70; Blaney v. Sargent, id. 335; Crowningshield v. Crowningshield, 2 Gray, 524; 7 id. 74, 83; Gerrish v. Nason, 22 Maine, 438; Rees v. Stille, 38 Penn. 138; The Parish Will Case, 25 N. Y. 9; Goodell v. Pike, 40 Vt. 319.

Charles N. Davenport, for proponent, to the point that the burden of proving want of capacity is on the party alleging it, cited Robinson v. Hutchinson, 26 Vt. 38; Dean v. Heirs of Dean, 27 id. 746; Hoge v. Fisher, Pet. C. C. 163; Stevens v. Vancleve, 4 Wash. C. C. 262; Pettes v. Bingham, 10 N. H. 514; Jackson v. Van Dusen, 5 Johns. 144; Jackson v. King, 4 Cow. 207; Allen v. The Pub. Admr., 1 Bradf. 378; Hix v. Whittemore, 4 Metc. 545; Baxter v. Abbott, 7 Gray, 71; Sloan v. Maxwell, 2 Green Ch. 563; Trumbull v. Gibbons. 2 N. J. 117: Werstler v. Custer, 46 Penn. 502; Runyan v. Price, 15 Ohio St. 1; Duffield v. Robeson, 2 Harr. 375; Chandler v. Ferris, 1 id. 454; Hawkins v. Grimes, 13 B. Monr. 257; 1 Redf. on Wills, ch. 3, §5; 1 Swinb. on Wills, 45, part 2, § 3, part 4, cited in 1 Redf. 46, note 32; Shelford on Lunacy, etc., 274; 2 Greenl. Ev. § 689; 1 Jarman on Wills, 74, 75. The only exception among text writers is Perkins.

PIERPONT, C. J. This case was taken into the county court by appeal from a decree of the probate court for the district of Manchester, allowing and establishing an instrument presented as the last will and testament of one John Robinson, deceased. Upon the trial in the county court, the principal point in controversy was as to the mental capacity of the said John Robinson to make a will at the time when the instrument was executed.

The contestant, in his plea, alleges that the said instrument ought

Williams v. Robinson.

not to be allowed and established as the last will and testament of said John Robinson, "because, he says, that, at the time of the making of said instrument, said John was not of sound mind," etc. To this the proponent replies, "that, at the time of the making and executing said supposed will, the said John Robinson was of sound mind," and puts himself upon the country.

In submitting the case to the jury, the county court instructed them, "that, in this case, under the issue joined, the burden of proof as to the incompetency of said John to make said instrument rested upon the contestant, and that it was for him to make out, by a fair preponderance of proof, that said John was incapable of making the instrument at the time it was made, in order to defeat it upon that ground." To this charge the contestant excepts, and brings the case before this court; and the only question now before us is as to the correctness of the charge in this respect.

In determining this question, it may be well to look at the nature and object of the proceeding in that court, and the true relation of the parties of record to such proceeding. When the case is brought into the county court, by appeal from the probate court, it stands upon the same ground, and is to be proceeded with in the same manner, as though the county court had original jurisdiction of the subject, and the proceeding had been first instituted there. The judgment of the probate court is vacated by the appeal, and is of no force or effect. The proponent presents the instrument, and asks the court, by its judgment, to establish it as the last will and testament of the deceased. There is no presumption in its favor. The estates of deceased persons, by law, go to the heirs, unless a different disposition is made thereof by the deceased, while living, by a will. By our statute, "every person of full age and sound mind" may dispose of all of his estate, both real and personal, by his will, executed in accordance with the requirements of the statute. No person, unless of full age and sound mind, can so dispose of his property. Hence, when the proponent presents the instrument, he must satisfy the court that the deceased, at the time he executed the will, belonged to the class of persons that by law can make wills, and also that the instrument in question was executed by the deceased with all the forms required by the statute; and this he must do, whether any one appears to contest the will or not. This burden is upon him at the outset, even when there is no contest about the will. This being so, the appearance of a contestant cannot have the effect VOL. I.46

Williams v. Robinson.

to change or lessen the burden. If the contestant takes issue upon a single point only, as in this case, he does not thereby admit the other facts necessary to be established, and thus relieve the proponent from his obligation to prove them. This he cannot do by his pleadings, or otherwise. This proceeding is not like an ordinary suit at law, where the parties of record are the only parties in interest, and the only ones affected by the result. In such case courts act upon the concession of the parties, and render judgments thereon but, in proceedings of this kind, the judgment of the court is conclusive upon all the world, and ordinarily there are other persons interested, and that will be concluded by the result, besides the proponent and contestant, and their rights are not to be conceded away by the parties of record.

In this case, the only issue presented by the pleadings is as to the capacity of the testator, and the fact in this respect must be established by the proponent, even if it is not denied. It would be quite extraordinary if a denial of it should have the effect to relieve him from that obligation, and impose upon the party making the denial the burden of disproving it.

On the trial in this case, upon the issue formed, the proponent must first proceed with proof of the due execution of the will. If he fails in this, he fails in the proceeding. If he succeeds in proving due execution, it is claimed that a presumption arises therefrom of the capacity of the testator. Suppose that to be true, does it change the burden of proof, in the sense in which that expression is ordinarily used in reference to legal proceedings, so as to impose upon the contestant the necessity of proving affirmatively that the deceased, at the time of executing the will, was actually insane, or had not sufficient capacity to make a will? Is it not sufficient to rebut the presumption? Clearly it is. The presumption is no stronger than positive proof would be, if there was no presumption; and if, in such a case, the proof is met by the contestant with testimony that makes the question so doubtful that the triers are unable to find the fact of capacity, the instrument cannot be established, even though they might have the same difficulty in finding the fact of incapacity. The burden still rests on the proponent; and it is the same in respect to the presumption. It only stands in the place of proof, and aids to make out a prima facie case.

In the course of the trial, the balance of testimony may fluctuate from one side to the other, but the burden of proof remains where