
    In the Matter of the Probate of the Will of Robert E. Hopkins, Deceased. Robert E. Hopkins, Jr., an Infant, by Joseph W. Middlebrook, his Special Guardian, Appellant; Fanny W. Hopkins, as Executrix, etc., of Robert E. Hopkins, Deceased, and Others, Respondents.
    
      Affirmative of the'issue — it is a substantial right—Men a party is entitled thereto — cancellation of the signature to a will—pi’esumption arising from the will being found in the testator’s custody with the signature canceled — what acquiescence in a ruling is not a waiver of an exception.
    
    The right to the affirmative of an issue is a substantial one, and the denial thereof will be reviewed on appeal.
    If the plaintiff, without giving any evidence, is entitled to recover upon the pleadings, the affirmative of the issue rests with the defendant,, but if the plaintiff will be obliged to offer 'any evidence, however slight, in order to recover, he is entitled to the affirmative. 1
    The signature to a will offered for probate was canceled by fourteen almost perpendicular ink lines drawn across it. On an appeal from a decree adopting the will to probate the Court of Appeals remitted the proceedings for a trial before a jury in the Supreme Court to determine whether the will had been revoked by the testator.
    
      Held, that it would'be presumed that the cancellation of the will was done subsequent to its execution, but that before even a presumption of revocation could be raised it must be shown that the will when found in the testator’s care .or custody was there found with the.signature thus canceled;
    That, consequently, if neither party had offered any evidence, the proponent of the will would succeed, and hence that the contestant had the affirmative of the issue;
    That the contestant having excepted to the trial judge's ruling that the proponent was entitled to the affirmative, did not, by thereafter acquiescing in the ruling waive his right to urge his exception on appeal.
    Appeal by the contestant, Robert E. Hopkins, Jr., an infant, by Joseph W. Middlebrook, his special guardian, from an order of the Supreme Court, made at the Westchester Trial Term .and entered in the office of the clerk. of the county of Westchester on the 21st day of April, 1903, denying his- motion to set aside the verdict of a jury and also for a new trial.
    
      Joseph W. Middlebrook, special guardian, for the appellant, Robert E. Hopkins, Jr.
    
      
      Charles Blandy, Andrew J. Shipman and Clarenee S. Davison,. for the respondent Fanny W. Hopkins.
    
      Ernest I. Edgeomb, for the respondents Pompey Congregational Church and others.
    
      James MacGregor Smith, for the respondents American Board of Commissioners for Foreign Missions and another.
   Jenks, J.:

On the outset the contestant asked to open in that he had the affirmative. The executor made like request for the same reason. The court ruled with the executor, and she opened and closed the case. I am of opinion that the exception to this ruling was well taken, and that the order should be reversed.

In the Surrogate’s Court the will was admitted to probate. We affirmed the decree. The Court of Appeals remitted the proceedings for a trial before a jury in the Supreme Court to determine whether the will in question was revoked by the testator. (Matter of Hopkins, 73 App. Div. 559 ; revd., 172 N. Y. 360, 370.) The remittitur reads that the proceedings be “remitted to Westchester County for a trial before a jury in the Supreme Court to determine whether the will in question was revoked by testator.” When.this-contention to open the case arose, the trial court had before it this remittitur and the order of the Surrogate’s Court based thereon.

In Heilbronn v. Herzog (165 N. Y. 98) the court, per Werner,. J., say: “ It is the well-settled rule in this State that the party holding the affirmative upon an issue of fact has the right upon the trial to open and close the proof, and to reply in summing up the case to the jury. This is regarded as a legal right not resting in the discretion of the court, and a denial thereof may be excepted to and the ruling reviewed upon appeal. (Millerd v. Thorn, 56 N. Y. 402;. Merzbach v. Mayor, etc., of New York, 163 id. 16.) The general rule upon this subject is, that if the plaintiff, without giving any evidence, is entitled to recover upon the pleadings, the affirmative of the. issue rests with the defendant.” In Lake Ontario Nat. Bank v. Judson (122 N. Y. 278) the court, per Bradley, J., hold that the defendant who wishes to open and close must plead so as to-present no issue, upon any of the plaintiff’s essential allegations, and say (p. 284): “ If the defendant fail to do that, no matter how little jeroof the remaining issue may require, or how easily, or in what manner-it may he established by evidence, the right of the plaintiff to open and close the case is not denied to him. (Mercer v. Whall, 5 Ad. & El. [N. S.] 447.)” Werner, J., rests the general rule in Heilbronn v. Herzog (supra) upon Lake Ontario Nat. Bank v. Judson (supra). This was a, trial judicially limited to a single question —• revocation. The will is in existence. The signature is canceled by fourteen almost perpendicular ink lines drawn, across it. This I may or may not constitute revocation, and the purpose of the tidal was to determine that, one question. The vfact that there is a question of revocation implies that there may not have been revocation.. A verdict that there was no revocation would leave the will unfevoked. The presumption is that the. cancellation was subsequent to execution. (1 Jarman Wills [R. & T. 5th Am. ed.] 304.) As I have said, the.isolated fact that the signature to. the paper was canceled; is not enough to establish even a presumption of revocation. There is no presumption from the mere existence of the will that it was last in the possession or the custody of the testator. Hence, before even a presumption- of revocation could be raised, it must be shown that the will, when found in the testator’s possession or custody, was there found thus canceled. (Matter of Hopkins, supra. See, too, 1 Williams Ex. [R. & T. 7th Am. ed.], 207, 208.; 2 Greenl. Ev. [15th ed.] § 681, note 7, citing Cases which, mark the distinction.) Upon the issue thus defined, if neither party had offered- evidence which would prevail? Surely not he who asserted revocation, forasmuch as the cancellation of the signature was not enough even to raise a ¡^resumption that it was by the hand or at the instance of the maker of the, will. As we have seen by the excerpt from the opinion in Lake Ontario Nat. Bank v. Judson (supra) it is of no moment how little proof may be required, or how easily it may be forthcoming, or in what manner, he who must produce it has the right to open the case. In Patten v. Cilley (46 Fed. Rep. 892) the court, per Abdrich, J., in discussing this very question, say: And by the term ‘ holding the affirmative ’ is intended the primary affirmative.” ,

Wharton on Evidencie; (3d ed. § 894) says: “ It is further clear that the burden of showing that a once valid will has been revoked by mutilation will lie upon the party who undertakes to prove the revocation,” citing authorities. (And see Patten v. Cilley, supra ; Farrell's Adm'r v. Brennan's Adm'x, 32 Mo. 328, 333; McClintock v. Curd, Id. 411; Higgins v. Carlton, 28 Md. 115, 143; Edelen v. Edelen, 6 id. 288 ; Singleton v. Singleton, 8 Dana, 315; Behrens v. Behrens, 47 Ohio St. 323; Jones v. Jones, 137 N. Y. 610; Bailey on Onus Prob., who cites some of these cases.)

The learned counsel for the executor says that “the general rule is laid down in the text books that in all controversies of this character the right to open and close lies with the proponent of the will,” and cites an extract from 15 Encyclopaedia of Pleading and .Practice (p. 197). The material part as printed in their points is that the proponent has the opening and conclusion, “ even in cases where a bill is filed to set aside a will already probated.” But the learned counsel did not notice, at least they did not print, the full sentence in the encyclopaedia, namely, “ though the reason of this rule is not apparent, for it would seem that after probate the will should be presumed to be valid.” (See p. 198.) The cases cited in the encyclopaedia to support this sentence quoted by the executor may be discriminated. While they present the feature of a prior probate yet invariably on the trial in which the ruling was made the, factum of the will was challenged anew, despite the prior probate, either pursuant to the practice or by direction of a statute. Thus in Mathews v. Forniss (91 Ala. 157) the decision is based upon Hill v. Barge (12 id. 687) and on Lyons v. Campbell (88 id. 462), and in both cases the statute afforded a bill in chancery whereby the entire issue was tried. Rigg v. Wilton (13 Ill. 15) is decided on the authority of Higdon's Heirs v. Higdon's Devisees (6 J. J. Marsh. 48) and of Rogers v. Thomas (1 B. Mon. 390). Higdon's Heirs v. Higdon's Devisees challenged the factum of a will, and so did Rogers v. Thomas, pursuant to the authority of a statute affording a bill in chancery for that purpose. Bevelot v. Lestrade (153 Ill. 625) was a bill to set aside the will for mental incapacity and undue influence, and so also was Vancleave v. Beam (2 Dana, 155). The other authorities cited by the learned counsel are chiefly in cases when thé will must be established in the first instance no matter by how slight or by how formal proof; when the attack was upon the factum of the will, and not when, as under tliis^ issue, there was no question as' -to the factum of a will, but simply whether the testator had undone that which had been well done, and which, if he had not undone it, was still, in the eye of the law, well done.

The learned counsel for the executor insist that the' contestant waived his right by this request: “ I ask your honor to charge that the burden of proof is upon those proposing the will, namely* Mrs. Hopkins, to show that the marks on the signature were not made by Robert E. Hopkins.” This was charged. The exact language of the request is important. It is not as to the burden of proof on the whole case, but as to the burden of showing that the marks on the signature were not made by the testator. It is true that the executor proved a prior and vain search for the will, but she thereafter proved by Mr. Warren that he finally found the will in a drawer of the testator’s desk, in its present condition, i. e., with the ink marks across the. signature. This, then, was evidence offered by the executor that the will in its present condition was last in the possession of the testator. Hence arose the presumption that the cancellation was by his hand, or at 1ns instance (Matter of Hopkins, supra, 363), and, consequently, while the burden of proof upon the whole case never shifted, yet there arose the necessity of evidence ori the part of the executor to show that the marks were not made by the testator. But assume that the request referred -to the burden of the issue itself. The court had theretofore in effect ruled that the executor bore this burden when it gave to-her the right to open the case. The'contestant had excepted to this ruling, and I think that he did not waive his right to urge his exception upon appeal because he thereafter submitted to the law of that case as then decided by the court. In Fireman’s Ins. Co. of Newark v. Schwing (11 S. W. Rep. 14), decided by the Court of Appeals of Kentucky, át the opening the court ruled as- to the iburden of proof and the appellant excepted. The court say: “It is also contended that the appellant waived its right to insist upon the alleged errors in this court for the reason that its counsel asked an instruction to the effect that the burden was on the plaintiff, and they must believe from a preponderance of the testimony that the fall of the building was the result of the fire before they can find for the plaintiff. The court had decided that such was the law of the case, and the defendant, having reserved his exception, was not required to further insist that his client had assumed or was entitled to the burden. He was left no other ground upon which to base his defense, and was compelled to acquiesce.”

The light sought was substantial, and the denial thereof was error. (Lake Ontario Nat. Bank v. Judson, supra, citing Conselyea v. Swift, 103 N. Y. 604.)

The order should be reversed and a new trial granted;

All concurred.

Order denying contestant’s motion to set aside the verdict and for a new trial reversed, and motion granted, costs to abide the final award of costs.  