Opinion
No. 4522.
Argued December 4, 1956.
Decided December 31, 1956.
While it is the general rule that exceptions not taken in the course of trial cannot be relied upon in the Supreme Court such exceptions may be considered in an issues to court case where the hearing below was designed to secure a ruling on a single question or where questions of law are apparent on the face of the record.
The burden of proof does not shift though the burden of going forward may do so.
Where a finding that the decedent was "living apart" from the survivor, within the meaning of the statute (R. L., c. 359, s. 19) which disentitles a spouse guilty of conduct which constitutes cause for divorce to any interest in the other's estate was not compelled on the evidence, a refusal to so find was sustained.
PROBATE APPEAL, from the denial of the plaintiff's petition that the estate: of his sister, Bertha M. McNally, be distributed to him rather than to Charles F. McNally, her surviving husband. At a previous hearing before the Superior Court, the appeal was dismissed. Upon transfer to the Supreme Court the ruling was set aside and the case remanded for a new trial. At the retrial, the issue was limited by agreement of the parties to the single question of whether at the time of her death on December 21, 1945, the deceased, Mrs. McNally, was living apart from her husband for cause within the meaning of our R. L., c. 359, s. 19, now RSA 560:19. The Trial Court ruled as a matter of law that the burden of proving Mrs. McNally was living apart from her husband for cause was upon the plaintiff and went on to find in effect that the plaintiff had not sustained the burden that she was living apart at the time for cause and dismissed the appeal.
The plaintiff took no exceptions during the trial but entered a bill of exceptions after the. Court's findings, rulings, and decree were filed. Other facts appear in the opinion. Transferred by Grimes, J.
Robert D. Branch (by brief and orally), for the plaintiff.
Wyman, Starr, Booth, Wadleigh Langdell (Mr. Wadleigh orally), for the defendant.
The defendant argues that since the plaintiff took no exceptions during or after the trial except to file his bill of exceptions, no issues are before this court. Nixon v. Cooper, 97 N.H. 327. While it is true as a general rule that exceptions not previously saved cannot be relied upon here, the. rule has often been relaxed, particularly in court cases where the hearing was designed to secure a ruling on a single question, as the case here (Eastman v. Waisman, 94 N.H. 253), or where questions of law are apparent from the face of the record. McPhee v. Colburn, 98 N.H. 406. Since an examination of the proceedings discloses that the plaintiff made no binding agreement, as the defendant claims, precluding himself from raising the issue, we shall consider the contention that the Trial Court erred in placing on the plaintiff the burden of proving that Mrs. McNally was living apart from her husband at the time of her death for cause. In this state the burden of proof does not shift (Cohn v. Saidel, 71 N.H. 558, 570) though the burden of going forward may do so. Monroe Loan Soc. v. Nute, 88 N.H. 13, 16. It is presumed that the Trial Court, observed these elementary principles. McLaughlin v. Union-Leader, 100 N.H. 367. It follows that the ruling is correct and the plaintiff's exception cannot be upheld.
The plaintiff further argues that the Trial Court was in error in refusing to find that Bertha M. McNally was living apart from her husband at the time of her death, because this action was opposed to the weight of the evidence. By agreement of the parties prior to the second trial the Court was to consider the evidence introduced at both hearings in reaching a decision and to determine only the issue of whether the decedent was living apart from her husband for cause at the time of her death. We have already held on evidence produced at the first hearing that a finding that the parties were living apart was not precluded under the statute, solely because they were under the same roof, and that condonation was not conclusively established. Gove v. Crosby, 98 N.H. 469, 473. The evidence introduced at the second hearing requires no different conclusions. However, the Trial Court's refusal to find that the decedent "was living apart from her husband at the time of her death" was warranted because the evidence did not compel such a finding. In the absence of a finding favorable to the plaintiff on this issue, the question whether the living apart was justified by an existing cause for divorce and any related issue of condonation were never reached. The plaintiff's exceptions are therefore overruled. The order is
Exceptions overruled.
All concurred.