A motion was made that this court order the defendants' brief stricken owing to its improper contents. The brief, full of indecorous epithets and irrelevant episodes, might well have been ordered stricken; Practice Book 692, Pradlik v. State, 131 Conn. 682, 683 n., 41 A.2d 906, Pierce v. Norton, 82 Conn. 441, 442 n., 74 A. 686, Kirbell v. Pitkin, 75 Conn. 301, 302 n., 53 A. 587; but in view of the decade of litigation and the wasteful expense of court and counsels' time, the motion was denied. The denial of the motion is not to be understood as condonation of the vituperative contents of this brief.

Where the evidence is conflicting, as in this case, it is for the trier to find the fact or draw the conclusion based upon the conflict of evidence. The futility of an attempt to retry in this court questions of fact conclusively settled by the finding of the trial court has been frequently pointed out by us. Hesse v. Meriden, S. C. Tramway Co., 75 Conn. 571, 573, 54 A. 299; Hayes v. Candee, 75 Conn. 131, 133, 52 A. 826; Kirbell v. Pitkin, 75 Conn. 301, 307, 53 A. 587; Hourigan v. Norwich, 77 Conn. 358, 369, 59 A. 487. After the defendant had filed his answer of not guilty, he moved to erase the cause from the docket because the complainant had not filed with the complaint the certificate of a reputable physician as required by General Statutes, § 6006.

'" In Hayes v. Candee, 75 Conn. 131, 133, TORRANCE, C. J., delivering the opinion, says: "The appeal record in this case seems to have been prepared, for the most part, as the basis of a futile attempt, on the part of the appellant, to retry here questions of fact conclusively settled in the trial court; and hence it contains a great deal of matter not only useless and unnecessary, but harmful, in that it tends to obscure the real questions in the case." In Kirbell v. Pitkin, 75 Conn. 301, 307, HALL, J., speaking for the court, says: "The impropriety and futility of thus attempting by appeal to retry in this court questions of fact, which have been conclusively settled by the finding of the trial court, has frequently been pointed out by us. See Hyde v. Mendel, 75 Conn. 140"; and in Hyde v. Mendel (p. 142) we say: "Claims that the court erred in weighing the evidence supporting the facts on which its judgment was founded cannot be considered.

After this, such proceedings were had in the Court of Probate, that said estate was distributed and finally settled as a testate estate under said will in February, 1900. In January, 1902, certain minor heirs of Kennedy took an appeal from the probate decree approving the December will, and in their reasons of appeal they alleged that the December will was not Kennedy's last will, because, as was alleged, he had made a later one, known as the February will. This appeal, to which Delehanty was not a party, was tried in May, 1902, and after a full hearing lasting some weeks, the Superior Court decided that the December will was the last will of Kennedy, and that the February will was not his will, and thereupon confirmed the decree from which said heirs had taken their appeal. This judgment, upon appeal to this court, was sustained in December, 1902. Kirbell v. Pitkin, 75 Conn. 301. Delehanty is a legatee and beneficiary under the February will, but not under the December will. The February will, in its legatees and beneficiaries, and in its legacies given and benefits conferred, differs very much from the December will, and it wholly revokes that will. Delehanty had no knowledge of the existence of the February will until at least a year after the settlement of Kennedy's estate under the other will. The February will is the real last will of Kennedy. In March, 1899, one of the executors under the December will obtained possession of the February will, "and by fraud destroyed the same."