Before MARIS, MAGRUDER and WOODBURY, Circuit Judges.
This litigation grows out of an attempt to partition several parcels of real property situated in the town of Charlotte Amalie on the Island of St. Thomas in the Virgin Islands, which for a number of years have been a bone of contention between the parties, a mother and her son. See Callwood v. Kean, 3 Cir., 1951, 189 F.2d 565; Callwood v. Virgin Islands National Bank, 3 Cir., 1955, 221 F.2d 770.
The properties involved formed part of the community property, or joint estate, of the defendant-appellant Elsa or Else E. Callwood and her late husband, Richard Edgar Clifford Callwood who died in Germany on January 17, 1917, leaving a joint will executed by him and his wife in St. Thomas on April 25, 1911. The pertinent provisions of that will were set out and its legal consequences for present puposes were in large part determined in Callwood v. Kean, supra. We need not recapitulate here, for we are not now primarily concerned with the respective rights derived by the parties in the community property under that will. It is enough to say that construing that will in accordance with the law of Denmark, which was in force in St. Thomas at the time of the testator's death, this court in Callwood v. Kean held: 1) That Elsa as the surviving spouse had the right to remain in possession of the entire joint estate, undivided and to the exclusion of their children,*fn1 until her remarriage. 2) That as the surviving spouse in possession of the property she "was entitled to sell or mortgage it or otherwise to deal with or dispose of it as absolute owner, although perhaps under a duty to compensate their children as heirs for any undue diminution in the aggregate value of their inheritance." 3) But that her right to dispose of the joint estate was limited by a provision in the will to the effect that the real properties could "only be sold or mortgaged with the consent" of one, or in the event of his death, of another of two named individuals or the appointee of the survivor of them, or in default of appointment by the survivor, a suitable person appointed by the District Court of the Virgin Islands.*fn2
Our present concern is with an agreement entered into by the parties to partition the properties and a deed executed by them to carry out their agreement which both parties signed on Sunday, August 30, 1953.*fn3 There can be no doubt that the parties signed the agreement and the deed. Nor can there be any doubt that within hours after the defendant signed she refused to acknowledge the deed for the reason, so she said, that she felt that she had been tricked, overpersuaded, harassed, and brow-beaten into affixing her signature to it. The plaintiff, in this situation, brought the present suit against his motion for specific performance of the partition agreement wherein more particularly he asked the court to "take proof of the execution" of the deed in accordance with Title II, ch. 15, § 17 of the Code of Laws of the Municipality of St. Thomas and St. John, and for an order certifying its due execution so that it might be recorded pursuant to the provisions of § 22 of ch. 15 of the Code referred to above.*fn4
At a pre-trial conference the issues for decision were limited to three of fact and one of law. The questions of fact were: 1) Whether the instruments (the agreement and the deed), were procured by the fraud, artifice, and trickery of the plaintiff's attorney. 2) Whether the defendant in signing the deed did so of her own free will with knowledge of its contents and with the intention of conveying the properties in the proportions therein set out. 3) Whether the Testamentary Guardian, Carl A. Anduze, referred to in footnote 2 above, had in fact given his consent to the defendant's execution of the deed. The question of law singled out for decision was whether the defendant had the power under the will to execute a valid conveyance of the property without the Testamentary Guardian's consent. By agreement an advisory jury was impaneled to hear the evidence and the first two factual questions were broken down into fifteen interrogatories for submission to it. The jury answered all of these interrogations in the plaintiff's favor, and the court then proceeded to analyze the evidence itself. In a full and carefully prepared opinion it confirmed the findings of the jury on each separate question. The court made no finding as to whether or not the Testamentary Guardian had in fact consented to the transaction, but ruled that in the situation presented his consent was not necessary. It also disposed of some other legal questions raised by the defendant and then entered a judgment to the effect that both the agreement and the deed were valid and that both should be recorded simultaneously in accordance with the provisions of § 22 of ch. 15, supra. This is the judgment from which the defendant has appealed.
The appellant strenuously contends on this appeal that both the jury and the court below erred in their evaluation of the evidence. She says that the jury erred in making, and the court in accepting, findings of fact contrary to the preponderance or weight of the evidence. Wherefore she argues that this court ought wholly to disregard the findings below and on its own independent reading of the evidence in the record make findings of fact contrary to those of the jury and the District Court. The argument rests upon an erroneous premise.
Whatever the old practice may have been on appeals from the District Court of the Virgin Islands in civil cases arising under local law, whether appeals in such cases were trials de novo as said in Callwood v. Kean, supra, 189 F.2d 581, or whether in such cases this court only exercised a somewhat broader power to re-evaluate the evidence than on appeals from United States district courts, need not concern us here. For Congress in § 25 of the Revised Organic Act of the Virgin Islands, 68 Stat. 507, 48 U.S.C.A. § 1615, passed some six months before this case was tried below, made the Federal Rules of Civil Procedure applicable in cases such as this, and Rule 52(a) of F.R.C.P. as amended in 1946, 28 U.S.C.A., in pertinent part provides:
"In all actions tried upon the facts without a jury or with an advisory jury * * *. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses."
Thus, whatever the inquiry in cases like this may have been in the past, our inquiry now is not directed to the weight or preponderance of the evidence but only to its legal sufficiency to support the findings.
So confined, our inquiry is soon completed. The evidence is conflicting; the appellant frankly concedes as much. Either the advisory jury or the District Court could have found the facts in favor of the plaintiff or in favor of the defendant. Both found the facts in the plaintiff's favor, and a study of the record discloses ample evidentiary basis for the findings. We therefore take it as established that the defendant was neither defrauded, nor harassed, hurried, over-persuaded, or brow-beaten into signing the agreement and deed but did so voluntarily and willingly, acting under no misapprehension, and with knowledge of their contents.
The appellant also contends that the court below erred in failing to instruct the advisory jury as required by § 1(1), (2) and (5) of ch. 62, Title III of the local code of laws referred to above. These sections require that in each case the jurors shall be instructed generally that their determinations of fact shall not be made arbitrarily but "with legal discretion and in subordination to the rules of evidence;" that they are not bound to reach a conclusion on any issue by the number of witnesses to testify on one side or the other but by the persuasiveness of their testimony; and that in civil cases the burden of proof is on the party asserting the affirmative of any issue, and when the evidence is contradictory their finding should be according to the preponderance of the evidence. The contention warrants only brief discussion.
Counsel for the appellant did not make his objection known at the trial and Rule 51 F.R.C.P. provides in part: "No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." We might, perhaps, in an extreme situation consider an objection to the charge, even in a civil case, made for the first time on appeal. We would not do so, however, unless the error in the charge was fundamental and highly prejudicial, and our failure to consider the error would result in a gross miscarriage of justice. That, however, is not the situation here. The sections of the statute summarized above deal only with generalities as to how the jury should weight and consider evidence. The omission to charge in accordance with its requirements could as well ...