
    BEYER v. LE FEVRE.
    Equity; Jurisdiction; Widds or Read Estate, Vadidity or.
    1. Equity has jurisdiction to entertain a bill by an heir at law who seeks to have a will of real estate made prior to the passage of the act of Congress of June 8, 1898, conferring jurisdiction upon the probate court to admit to probate wills of real estate, declared void as having been procured by fraud or undue influence, where the title to real estate owned by the deceased and which is the subject of ¿he aEeged devise, was and is of a mere equitable character, the legal title being in trustees.
    2. In such a case the question as to the manner of having the validity of the will tried is within the discretion of the lower court, whether by removing or restraining the impediment to the right of the heir at law to maintain an action of ejectment, or by framing issues to to be sent to a court of law for trial by jury, and the exercise of that discretion is not reviewable on appeal, except where it is shown to have been abused.
    3. A stipulation by all of the parties to such a proceeding that issues shaE be framed and tried in a court of law and upon the finding and verdict of the jury “a decree shall be entered in accordance with said findings,” subject to the right of appeal, is valid and binding, and the unsuccessful party on an appeal from a decree so entered can not properly urge that the stipulation is void.
    4. Such a decree wiE not be reversed on appeal unless the appellate court plainly sees from the facts of the case that the verdict was.not fairly supported by the facts.
    No. 1009.
    Submitted October 18, 1900.
    Decided December 6, 1900.
    Hearing on an appeal by the defendants from a decree of the Supreme Court of the District of Columbia declaring a paper purporting to be a last will and testament void as to real estate in accordance with the verdict of a jury.
    
      Affirmed.
    
    The Court in its opinion stated the case as follows:
    This appeal is from a decree of the Supreme Court of the District of Columbia, as a court of equity, declaring the paper purporting to be the last will and testament of Mary Beyer, deceased, null and void, as to the real estate of the deceased, and that said deceased died intestate as to her said real estate, according to the verdict of a jury found in the premises.
    The bill was filed on April 7, 1899, by a sister of the deceased, and an heir at law, against the devisees in the paper purporting to be her last will and testament, the executor named therein, the surviving husband of the deceased, and against certain other parties holding conveyances conveying the legal title to the real estate of the deceased, and creating incumbrances thereon.
    It appears from the allegation of the bill, and it is conceded to be the fact, that Mary Beyer, the deceased, died July 26, 1896, and that, on the 14th of that month, about two weeks prior to her death, she executed what purported to be her last will and testament. She was, at the time of her death, about sixty-five years of age, and had been, for a considerable period prior to her death, in a feeble state of health. She left surviving, her husband, Louis Beyer, and two sisters and the descendants of a deceased sister, as her heirs at law; she never having had children of her own. Her estate consisted almost entirely of certain real estate situate in the city of Washington; her personal estate'being very inconsiderable. Her interest in the real estate owned by her was of an equitable character merely, or an equity of redemption, with a reservation of the right of occupancy until default made in the payment of the debt- for which the land and premises had been mortgaged, or conveyed in trust as security, or until sale made under the power in the conveyance. The deed of trust was made by Mary Beyer and her husband, Louis Beyer, on the 11th day of May, 1896, to Charles C. Glover and Myron M. Parker, as trustees, to secure the sum of $2,800, loaned to Mary Beyer, with interest, and all cost and expenses of executing the trust; the debt to become due three years after the date of the deed of trust. It is not claimed or pretended that any part of this debt so secured had been paid by Mary Beyer before her death, and it still remains unpaid; and the legal title or estate in the property remains vested in the trustees.
    It is alleged by the bill, that Mary Beyer, the deceased, being in very feeble health, as we have already stated, was subject to such necessary treatment for her bodily ailments, and to the administration of drugs for her relief, that her mental faculties became greatly impaired, and to such an extent as to render her incapable of understanding the most ordinary affairs of life, or of knowing or appreciating the nature, character, value or extent of her estate, her right to exercise dominion over the same, the relatives whom she had, or the natural objects of her bounty, and wholly incapable of executing a valid deed or contract, and that this condition of mind and body existed for some time prior to her death, and was her condition down to the day of her death, and upon the date and at the time of the alleged execution of the paper purporting to be her will.
    It is further alleged in the bill, that while the said Mary Beyer was so enfeebled and suffering, the defendants, Louis Beyer, jr., an adopted son of the deceased, and Helen B. Johnson had a paper writing prepared, purporting to be a last will and testament, under their direction and according to their instruction, by a lawyer of their own selection, whom the said Mary Beyer had never seen, and induced the said Mary Beyer to affix her name to the same while she was on her death bed, and so feeble, both in mind and body, that she was unable to resist their importunities, and was not a free agent or able to form or express her wishes as to the disposition of her estate.
    By the paper so prepared and signed, as it is alleged, the property of the deceased was disposed of in a way quite different from and not in accordance with her real wishes and intent. That the entire estate and property of the deceased, with but small exception, was devised and bequeathed to the defendants, the said Louis Beyer, jr., and Helen B. Johnson, and Louis Beyer, jr., was constituted and appointed sole executor without bond. That the terms and provisions of the paper so executed were concealed from the defendant, Louis Beyer, the surviving husband of the deceased, by Louis Beyer, jr., and Helen B. Johnson, until after the death of the said Mary Beyer, because, as it is alleged, they were afraid that he would protest against their unlawful schemes and thwart and prevent them; and they procured the signature to said paper writing during his absence, which absence they had cunningly contrived to bring about.
    It is then alleged, that the paper writing that had been signed by said Mary Beyer was, on the 29th of August, 1896, submitted to the Supreme Court of this District, holding a special term for Orphans’ Court business, by Louis Beyer, jr., for probate, and that the same was then and there admitted to probate, and thereupon letters testamentary were issued to the said Louis Beyer, jr., who at once qualified as executor. It is also alleged, that Louis Beyer, the surviving husband, filed a caveat to the probate of said paper; but, in consideration of a conveyance, by Louis Beyer, jr., and Helen B. Johnson, of a part of the real estate supposed to be devised to them by the paper admitted to probate, the said Louis Beyer caused his caveat to be withdrawn. It is also alleged, that, in consideration of a considerable sum of money paid by Louis Beyer, jr., and Helen B. Johnson, Elizabeth K. Maus, a surviving sister of the deceased and one of her heirs at law, conveyed all her interest in and to the estate to said Louis Beyer, jr., and Helen B. Johnson, by deed of quit claim or release. It is further alleged, that Louis Beyer, Üie surviving husband, subsequent to the date of the deed to him by Louis Beyer, jr., and Helen B. Johnson, made a deed of trust of the property so conveyed to him, to Adolph G. Wolf and Meyer Cohen, as trustees, to secure $2,000 loaned to him, and which is still due and owing.
    The bill prays that the paper writing purporting to be the last will and testament of Mary Beyer, deceased, be decreed and declared to be not her last will and testament, and that she died intestate; that the deed of trust made by Louis Beyer, the surviving husband, to Wolf and Cohen, trustees, be decreed to be null and void, and that said trustees be restrained from attempting to execute the trust created by the deed to them; that Louis Beyer, the surviving husband, Louis Beyer, jr., and Helen B. Johnson, be decreed to account for rents and profits; that a receiver be appointed; and that the plaintiff may have such other and further relief as the nature and circumstances of the case may require.
    The defendants, Louis Beyer, jr., as devisee and executor, and Helen B. Johnson, answered the bill separately, though their answers set forth substantially the same state of facts. They deny that the deceased was incapable of making a valid will, and deny that the paper purporting to be the last will and testament of Mary Beyer, deceased, was obtained by any fraud or contrivance of theirs, or that they exerted any undue influence over the deceased, whereby she was induced to make her will. They aver and insist that the paper purporting to be the will of the. deceased, was made and executed with full and entire understanding of its contents, and was the. free and unconstrained expression of her feelings and intentions, and strictly in accordance with her own fixed intention as. to the manner of disposing of her property. They deny the jurisdiction of the court, and pray the benefit of a demurrer to the bill for that cause.
    In the answer of Cohen and "Wolf, trustees, they say they can not admit or deny the material allegations of the bill, in respect to the circumstances under which the paper purporting to be the will of the deceased was executed. But they aver and insist that the plaintiff has not presented a case by her bill to entitle her to relief in a court of equity, and they pray the benefit of a demurrer to the bill for want of jurisdiction.
    The' defendant, Louis Beyer, the surviving husband, has demurred to the bill; thereby raising the question as to the jurisdiction of the court as a court of equity to take cognizance of the case, and to grant the relief as prayed.
    At this stage of the case, and on the pleadings that we have stated, the parties, all being of full age and competent to act for themselves through their attorneys, came to an understanding or agreement as to the future proceedings in the cause ; and, to carry out such agreement, they entered into the following stipulation:
    “It is hereby stipulated by and between the parties to this cause, this 20th day of June, 1899, that the court may make an order certifying certain issues, to be named in said order, to be tried by a jury of the circuit court, and that the findings by said jury upon said issues shall be returned to this court; whereupon a decree shall be entered in accordance with said findings; all rights of appeal as in cases of issues from the orphans’ court being hereby reserved.” This stipulation was signed by the counsel for all the parties.
    Upon the filing of this stipulation, and in pursuance thereof, the court passed an order formulating three issues to be tried by a jury; the order reciting the fact that the issues thus framed were made by the consent of the parties; and the issues so made were in substance the following:
    1. Was said Mary Beyer of sound disposing mind on July 14,1896, when she .executed said paper writing ?
    
      2. Was the said paper writing procured by fraud, circumvention, or undue influence, exercised by Louis Beyer, jr., or Helen B. Johnson, or any other person?
    3. Were the contents of said paper writing known to her when she executed the same ?
    At the foot of the order directing these issues the parties, by their respective attorneys, signed the following memorandum of assent: “We assent to the passage of the above order.”
    The issues were transmitted to the circuit court for trial, and the trial took place in December, 1899 ; and after a protracted and a hotly contested trial, a verdict was rendered, whereby the jury found on all the issues in the affirmative, thereby affirming that while the deceased was of sound and disposing mind, and knew the contents of the paper, yet the execution of the same was procured by fraud, circumvention, or undue influence.
    It appears the defendants moved the court of law before which the trial took place for a new trial, but that was refused. Whereupon the findings of the jury were certified to the court of equity; and with the verdict or findings, by stipulation, all the evidence that was produced before the jury, and which had been stenographically reported, was filed in the equity court for its consideration in connection with the verdict.
    The cause was brought on to hearing upon the verdict and the evidence returned; and upon full consideration and after a carefully prepared opinion, the court passed the decree of the 16th of May, 1900, from which this appeal is taken.
    By that decree the court approved, ratified, and adopted the verdict of the jury; and decreed, in accordance with the findings of the jury, that the paper writing, bearing date the 14th day of July, 1896, and purporting to be the last will and testament of Mary Beyer, deceased, was not the. last will and testament of said Mary Beyer, but that said Mary Beyer died intestate as to her real estate. The cause was then referred to the auditor to state an account of rents and profits; and the decree awarded costs against the defendants ; and as to other and further questions that may arise they are reserved for further directions.
    
      Mr. Franklin II. Mackey, Mr. Henry E. Davis and Mr. John Ridout for the appellants:
    1. The stipulation to send issues to the law court for trial by jury was not a waiver of Beyer’s demurrer; it was merely in effect an agreement to allow a verdict to be taken subject to the opinion of the equity court on the demurrer when the case came up for final hearing before the only court which could render a final decree upon the law and the facts of the case.
    2. The remedy, if any, was at law. A court of equity has no jurisdiction to avoid or to set aside a will. Broderick’s Will, 21 Wall. 503; Fouvergne v. New Orleans, 18 How. 470; Ellis v. Davis, 109 U. S. 489. The existing deed of trust does not take away the legal right of appellee to the immediate possession, if the will be void. Malone on Real Property Trials, 97. The right of possession retained by the grantor in a deed of trust is a legal right and may be enforced at law by ejectment. George’s Creek Co. v. Detwold, 1 Md. 225, and cases cited; Fowler v. Whiteman, 2 Ohio St. 270; Hopkins v. Ward, 6 Munf. 38. A trustee under a deed of trust which permits the cestui que trust to use, occupy, and enjoy the property has no right of entry against the cestui que trust. Mackall v. Richards, 1 Mackey, 444. The trustee holds only a legal estate commensurate with his trust, and until the exigency arrives under which the trustee is to act the legal estate is in the grantor and his heirs. Webster v. Cooper, 14 How. 499; Poor v. Considine, 6 Wall. 471. A court of equity has no jurisdiction over a suit based upon an equitable title to real estate, unless the nature of the relief asked for is also equitable. Fussell v. Gregg, 113 U. S. 550; Hipp v. Babin, 19 How. 271; Grand Chute v. Winegar, 15 Wall. 373; Lewis v. Cocks, 23 Wall. 466; Killian v. Ebbinghaus, 110 U. S. 568; United States v. Wilson, 118 U. S. 86, 89; Frost v. Spitley, 121 U. S. 552, 556; Root v. Woolworth, 150 U. S. 401, 410.
    3. The verdict was against the weight of the evidence. The testimony was so overwhelming as to the mental capacity of Mrs. Beyer at the time of making the will that the jury found that issue in favor of the appellants; and yet the same witnesses who testified to the testatrix’s mental capacity also testified that nothing in the nature of undue influence was exercised. If their testimony was credible upon the subject of mental capacity, it was equally credible upon the other issue. While the issue of undue influence is quite distinct from that of testamentary capacity, the two are commonly found united, and must be considered together. 27 Encyc. Law, 504; Schouler on Wills, Secs. 225, 226 ; Latham v. Udell, 38 Mich. 238; Schouler on Wills, Secs. 226, 239, 242; Shailer v. Barnstead, 99 Mass. 112; Boyse v. Rossborough, 6 H. L. Cas. 6; Most v. McGlynn, 88 N. Y. 357; Fritts v. Deuemberger, 12 N. J. Eq. 129.
    4. The-provisions of the will were just and natural. See 27 Encyc. Law, 502; Allen v. Public Admr., 1 Bradf. (N. Y.), 378; Schouler on Wills, Sec. 248.
    5. At most the verdict was advisory only. Watts v. Starke, 101 U. S. 247; Garsed v. Beall, 92 U. S. 684; Prout v. Roby, 15 Wall. 472; Quinby v. Conlan, 104 U. S. 420; Chase v. Winans, 59 Md. 475.
    
      Mr. Charles Poe and Mr. Clayton E. Emig for the appellee:
    1. The court had jurisdiction. Boyse v. Lord Rossborough, 6 H. L. Gas. 2. The estate being an equitable one (Morsell v. First Natl. Bank, 91 U. S. 357), the court of equity could protect’ and administer it, and it was in the power and discretion of the chancellor to direct the mode of procedure most conducive to the establishment of the rights of the heirs.
    2. The parties to the cause consented to the mode of. procedure by their solemn agreement filed, in the cause, and sanctioned and confirmed by the court, had their trial by jury, by the same tribunal and in the same mode and manner that they would have had in an action of ejectment. It is too late, to object to the manner chosen of having a jury trial. Strong v. Willey, 104 U. S. 512-15.
   Mr. Chief Justice Alvey

delivered the opinion of the Court:

There have been two principal questions argued upon this appeal: First, as to the jurisdiction of a court of equity to take cognizance of the case, frame issues for trial by jury in a court of law, and to pass a decree such as that appealed from. And, second, assuming the jurisdiction to exist, whether the decree was justified by the verdict and the facts found in the case.

Before the act of Congress of June 8, 1898, entitled “An act conferring on the Supreme Court of the District of Columbia jurisdiction to take proof of the execution of wills affecting real estate, and for other purposes,” the Supreme Court of this District, holding special terms for orphans’ court business, had no power or jurisdiction to receive proof of and to admit to probate a will or codicil as a devise of real estate. Campbell v. Porter, 162 U. S. 478. That act, however, has changed the law upon the subject; but it has declared that it shall apply only to wills and testaments thereafter offered for probate; provided that any person interested under any will theretofore filed in said court may offer the same for probate as a will of real estate, whereupon such proceedings shall be.had as by this act are authorized in regard to wills hereafter offered for probate. Section 8, act of Congress, June 8, 1898. This latter provision, of course, does not apply to the case of a will and testament made and admitted to probate, as to the personal estate of tbe deceased, prior to the passage of the act of Congress, and where the heir at law takes proceedings, not to have the will admitted to probate, but to have what professes to be the will of the deceased, declared null and void as to the real estate of the deceased, since the passage of the act of Congress. If this case had originated under a will made since the passage of the act of Congress just referred to, the devisee could only claim by virtue of the probate of the will had under that act. The Supreme Court of the District, holding special sessions for orphans’ court business, has been given full and plenary jurisdiction over the subject of admitting or refusing probate of wills affecting real estate, just as in the case of wills and testaments affecting personal estate; and the judgment of that court can not be called in question in any collateral proceeding. It is given by the statute an exclusive jurisdiction over the matter of probate, subject, of course, to review on appeal. Act of Congress, sections 2, 3, 6 and 7; Case of Broderick’s Will, 21 Wall. 503; Allen v. McPherson, 1 Ho. L. Cas. 191.

But in the present case the paper purporting to be the will was made, and the party supposed to be the maker of it, died in 1896, before the act of Congress was passed; and the case, therefore, must be decided according to the law as it existed at the time of the death of the supposed testatrix, and when the paper was offered for probate as .to the personal estate.

As we'have seen, the title to the real estate owned by the deceased, and which is the subject of the alleged devise by the paper in question, was and is of a mere equitable character, or the mere right of an equity of redemption, the legal estate being vested in trustees. This equitable title, therefore, was not such as would, ordinarily, maintain an action of ejectment at law for the recovery of the land by the heir at law against parties claiming as devisees under the alleged will of the deceased, the grantor in the deed of trust. Lincoln v. French, 105 U. S. 614; Brobst v. Brock, 10 Wall. 519; Morsell v. Nat. Bank, 91 U. S. 357; Van Ness v. Hyatt, 13 Pet. 298; Bank of Metropolis v. Guttschlick, 14 Pet. 19.

Seeing, then, that there was no jurisdiction in the probate court, and that an action of ejectment can only, as a general proposition, be maintained on a legal title, for the recovery of the land by the heir at law, it would seem to be clear beyond doubt that the remedy for the heir at law was by a bill in equity, for the purpose either of having the impediment to the right of maintaining an action at law removed or restrained, or of having issues framed and sent to a court of law for trial by a jury. Otherwise there might be a failure of justice for the want of a fit and proper remedy by which to attain it.

The English decisions are numerous by which bills have been maintained in cases like the present. And without undertaking to refer to them all, we shall refer to some few of the more recent and controlling of them. And the first to which we shall refer is the case of Pemberton v.. Pemberton, 13 Ves. 290. In that case the bill was filed by the sisters of the testator, claiming as co-heiresses at law, against the devisee of an equitable estate, and an issue, devisavit vel non, was directed, and which was tried in the common pleas, before Chief Justice Mansfield, and a verdict was found in favor of the will. Upon motion for a new trial, heard before Lord Eldon, the chancellor said: “This bill is rather new in principle. I have no doubt, that heirs at law, entitled to the estates, of which their ancestors were seised, though only in equity, and therefore not having the means of proceeding at law, may come into equity, merely to recover the possession of those estates, and to have the deeds delivered up. I will not say, that in some cases they may not apply to have a will delivered up as an instrument that ought not to vex their title; which, however, if it retains in it anything that has validity, ought not to be delivered up.' But the course has been to file a bill, stating the reasons they can not bring an ejectment; such as mortgages, outstanding terms, etc., and in general cases this court, as it can not try the validity of a will, sends that to be determined by the proper tribunal; and afterwards does what is right.” These latter remarks have been explained or qualified in subsequent cases.

The next case that may be referred to is that of McGregor v. Topham, 3 Hare, 488, 496. That was a bill in equity filed on behalf of an heiress at law against a devisee, impeaching the validity of a will upon the ground of fraud and undue influence, and where the estate was equitable, and consequently no action of ejectment could be maintained. In that case there was an issue. devisavit vel non' sent to a court of law for trial, and the verdict was in favor of the respondent. The plaintiff, the heir at law, made a motion for a new trial, but the motion was refused by the vice chancellor, and the case was taken to the House of Lords on appeal, where the decree was affirmed. 3 Ho. L. Cas. 132. In that case, it was held by the House of Lords that though there may be an outstanding legal estate, which compels the heir at law to come into equity, he can not, on-that account, claim a right to have the issue tried a second time, if the court, in the exercise of its discretion, should deem the first verdict satisfactory. And, as we suppose, for the same reason, the party claiming as devisee could have no right to a second or new trial of the issue.

The next and last case to which we shall refer on this question, is that of Boyse v. Rossborough, 6 Ho. L. Cas. 2. That is a case of close analogy to the present in many of its facts, and is of the highest authority, as it was most elaborately argued both at the bar and by the lord chancellor in the decision of the case.

In that case, there were outstanding terms which formed an obstacle to the maintenance of ejectment at law for the real estate in question, and the bill was filed by an heir at law against the devisee to impeach the will of the real estate as having been obtained by undue influence or fraud practiced upon the alleged testator. There was an issue devisavit vel non made up and sent to a court of law for trial, the defendant’s counsel not objecting. The issue was tried, and the verdict was against the will. Motion was made for a new trial, and was overruled; whereupon an order was made declaring the paper writing purporting to he the will, null and void as a devise of the real estate in the pleadings mentioned.

It was strongly argued on the part of the appellant, the devisee, that the course pursued by the court below in that case, that of granting an issue devisavit vel non on the application of the heir at law, in a suit instituted by him to impeach a will, was without justification in principle or precedent, and was contrary to the settled practice of courts of equity. That, according to the contention of counsel, when a devisee files a bill against an heir at law for the purpose of establishing a will, the heir at law has, no doubt, a right to an issue devisavit vel non, for the purpose of compelling the devisee to give full and clear proof of the will. But when the heir at law files a bill against a devisee impeaching a will of real estate, the heir at law has no right to such issue. It was, however, conceded by the counsel for the devisee, that if there should be such impediments to the heir trying his title at law as to prevent him from maintaining an action at law for that purpose, the ordinary course was then to file a bill in a court of equity to remove such impediments, and leave the heir to his legal remedy; and if the impediments are of such a kind as to prevent the court of equity from effecting that purpose; if the circumstances are such that the heir can not have relief at law in any other way, then, but then only, it may grant him an issue.

But on the part of the appellee, the heir at law, it was insisted by counsel, that the proceedings that had taken place in the court below were entirely regular, and in perfect conformity with the principles and practice of the court of chancery. That in a bill by an heir at law, impeaching a will on grounds such as existed in that case, and where undue influence or fraud had produced what might be denominated the absence of a disposing mind, it was entirely within the discretion of the court either to grant an issue devisavit vel non or to leave the heir to proceed by ejectment, the court of equity simply removing out of his way all those technical obstacles which might prevent the decision of his legal title; that the court is not bound to adopt one of those courses in preference to the other, but may take either in its discretion.

This contention of counsel for the heir at law was supported to its full extent by the unanimous judgment of the House of Lords, the opinion being delivered by Lord Chancellor Cranworth. It was held, that a court of equity had full power, both on principle and precedent, to exercise its discretion either to direct an issue, devisavit vel non, or merely to remove obstacles out of the way of the heir at law asserting his legal title in an action at law. It was, moreover, held, that an appellate court will not interfere with the exercise of that discretion, unless it appears that injustice has been, or will likely be, the consequence.

In answer to the argument that was made in that case, that the consequences of the course that was taken by the court below was prejudicial or injurious to the devisee, although adopted with the sanction, if not at the suggestion, of the counsel of the devisee, the lord chancellor said:

“In order to come to a just conclusion on this point, let us consider what was the precise practical difference to the appellant from the adoption of the one course rather than the other. When on a bill, by an heir disputing a will, nothing is done beyond the removal of the legal impediments, then the heir brings an action of ejectment against the party in possession claiming as devisee; and assuming the heirship of the plaintiff to be, as it was in this case, admitted, the defendant begins at the trial, and adduces his evidence in support of the will. The heir then meets this case by such evidence as he can bring to impeach the will. The defendant replies, and the jurymen give their verdict. Precisely the same thing happens on an issue devisavit vel non. So far, therefore, as the trial is concerned, it is of no importance which course is taken. Supposing the verdict to be against the will, and there is no motion for a new trial, then, if the proceeding was by ejectment, the heir obtains possession by virtue of a writ of habere facias possessionem. If the course taken was to direct an issue, then the court of chancery causes possession to be given to the heir. In either case the devisee is compelled to give up possession to the heir; and whether this result follows’ from one species of process or another can not be material. If the result of the trial is different, and the verdict is in favor of the devisee, then, whatever course was taken for the purpose of trying the validity of the will, the bill of the heir will be dismissed, and the devisee will retain possession.”

The question of the want of jurisdiction of equity, so much discussed at the bar in the argument of this case, is really not involved. It was only a question of discretion in the court below as to the manner of having the validity of the will tried; and the exercise of that discretion is not the subject of review, except where it is shown to be abused.

But in this case the parties made their own election as to how they would have the validity of the will tried. By solemn stipulation they agreed that issues should be formed and sent to a court of law for trial, and, upon the finding and verdict of the jury, that “ a decree should be entered in accordance with said findings,” subject to the right of appeal. The devisees, by their counsel, can not now be heard to urge, with any judicial propriety, that their stipulation, after all the cost, labor, and delay incurred, consequent upon that stipulation, should be tr.eated as nugatory; that while they led the court to adopt a course, in its discretion, that it might-not have adopted but for that stipulation, they should not now, because the result has been adverse to their expectations, be allowed to repudiate their solemn agreement for the manner of conducting the case. Tliey must accept the result for the possibility of which they have stipulated.

With respect to the question, whether upon the facts the verdict of the jury ought to be sustained, we can not seriously entertain a doubt. The jury have passed upon the facts in the trial of the issues, and it is only where the court can see that a new or second trial of the issues is required to effectuate justice that a new trial will be granted. In this case no motion for a new trial was made to the court of equity upon the return of the verdict to that court, upon the issues formed by it. It was for that coui’t to say, whether the finding of the jury was satisfactory or not. The evidence taken at the trial of the issues would seem to have been eminently proper for the consideration of the jury. The justice before whom the issues were tried at law, as well as the justice in the court of equity, were entirely satisfied with the verdict. The trial in all respects seems to have been fairly conducted. The jury were fully and fairly instructed by the court, at the instance of the respective parties, and all the prayers offered by each side were granted, read, and fully explained to the jury. We can perceive no substantial ground upon which the verdict should be set aside, and a new trial upon the issues granted. As there was no other evidence in the case than that upon which the jury acted and based their verdict, if the court below was satisfied, as it appears to have been, that the verdict was the fair result and conclusion from that evidence, the court was certainly justified in accepting and adopting the verdict, and making it .the basis of . its decree. It would only be in a case where an appellate court could plainly see from the facts of the case, that the verdict of a jury, upon issues in a case like the present, was not fairly supported by the facts, that a new trial of the issues would be granted, as against the order of the court below. In this case we perceive no such ground for a new trial. It follows that the decree must be affirmed, and it is so ordered. Decree affirmed.  