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As the foregoing psalm, in the type of David in preferment, showed us the royal dignity of the Redeemer, so this, by the example of David in distress, shows us the peace and holy security of the redeemed, how safe they really are, and think themselves to be, under the divine protection. David, being now driven out from his palace, from the royal city, from the holy city, by his rebellious son Absalom, I. Complains to God of his enemies, ver. 1, 2. II. Confides in God, and encourages himself in him as his God, notwithstanding, ver. 3. III. Recollects the satisfaction he had in the gracious answers God gave to his prayers, and his experience of his goodness to him, ver. 4, 5. IV. Triumphs over his fears (ver. 6) and over his enemies, whom he prays against,, ver. 7. V. Gives God the glory and takes to himself the comfort of the divine blessing and salvation which are sure to all the people of God, ver. 8. Those speak best of the truths of God who speak experimentally; so David here speaks of the power and goodness of God, and of the safety and tranquility of the godly.
1 Lord, how are they increased that trouble me! many are they that rise up against me. 2 Many there be which say of my soul, There is no help for him in God. Selah. 3 But thou, O Lord, art a shield for me; my glory, and the lifter up of mine head.
The title of this psalm and many others is as a key hung ready at the door, to open it, and let us into the entertainments of it; when we know upon what occasion a psalm was penned we know the better how to expound it. This was composed, or at least the substance of it was meditated and digested in David's thought, and offered up to God, when he fled from Absalom his son, who formed a conspiracy against him, to take away, not his crown only, but his life; we have the story, 2 Sam. xv., &c. 1. David was now in great grief; when, in his flight, he went up the Mount of Olives, he wept greatly, with his head covered, and marching bare-foot; yet then he composed this comfortable psalm. He wept and prayed, wept and sung, wept and believed; this was sowing in tears. Is any afflicted? Let him pray; nay, let him sing psalms, let him sing this psalm. Is any afflicted with undutiful disobedient children? David was; and yet that did not hinder his joy in God, nor put him out of tune for holy songs. 2. He was now in great danger; the plot against him was laid deep, the party that sought his ruin was very formidable, and his own son at the head of them, so that his affairs seemed to be at the last extremity; yet then he kept hold of his interest in God and improved that. Perils and frights should drive us to God, not drive us from him. 3. He had now a great deal of provocation given him by those from whom he had reason to expect better things, from his son, whom he had been indulgent of, from his subjects, whom he had been so great a blessing to; this he could not but resent, and it was enough to break in upon any man's temper; yet he was so far from any indecent expressions of passion and indignation that he had calmness enough for those acts of devotion which require the greatest fixedness and freedom of thought. The sedateness of his mind was evinced by the Spirit's coming upon him; for the Spirit chooses to move upon the still waters. Let no unkindness, no, not of a child or a friend, ever be laid so much to heart as to disfit us for communion with God. 4. He was now suffering for his sin in the matter of Uriah; this was the evil which, for that sin, God threatened to raise up against him out of his own house (2 Sam. xii. 11), which, no doubt, he observed, and took occasion thence to renew his repentance for it. Yet he did not therefore cast away his confidence in the divine power and goodness, nor despair of succour. Even our sorrow for sin must not hinder either our joy in God or our hope in God. 5. He seemed cowardly in fleeing from Absalom, and quitting his royal city, before he had had one struggle for it; and yet, by this psalm, it appears he was full of true courage arising from his faith in God. True Christian fortitude consists more in a gracious security and serenity of mind, in patiently bearing and patiently waiting, than in daring enterprises with sword in hand.
I. With a representation of his distress, v. 1, 2. He looks round, and as it were takes a view of his enemies' camp, or receives information of their designs against him, which he brings to God, not to his own council-board. Two things he complains of, concerning his enemies:—1. That they were very many: Lord, how are they increased! beyond what they were at first, and beyond whatever he thought they would have been. Absalom's faction, like a snow-ball, strangely gathered in its motion. He speaks of it as one amazed, and well he might, that a people he had so many ways obliged should almost generally revolt from him, rebel against him, and choose for their head such a foolish and giddy young man as Absalom was. How slippery and deceitful are the many! And how little fidelity and constancy are to be found among men! David had had the hearts of his subjects as much as ever any king had, and yet now, of a sudden, he had lost them. As people must not trust too much to princes (Ps. cxlvi. 3), so princes must not build too much upon their interest in the people. Christ, the Son of David, had many enemies. When a great multitude came to seize him, when the crowd cried, Crucify him, Crucify him, how were those then increased that troubled him! Even good people must not think it strange if the stream be against them and the powers that threaten them grow more and more formidable. 2. That they were very malicious. They rose up against him; they aimed to trouble him; but that was not all: they said of his soul, There is no help for him in God. That is, (1.) They put a spiteful and invidious construction upon his troubles, as Job's friends did upon him, concluding that, because his servants and subjects forsook him thus and did not help him, God had deserted him and abandoned his cause, and he was therefore to be looked on, or rather to be looked off, as a hypocrite and a wicked man. (2.) They blasphemously reflected upon God as unable to relieve him: "His danger is so great that God himself cannot help him." It is strange that so great unbelief should be found in any, especially in many, in Israel, as to think any party of men too strong for Omnipotence to deal with. (3.) They endeavoured to shake his confidence in God and drive him to despair of relief from him: "They have said it to my soul;" so it may be read; compare Ps. xi. 1; xlii. 10. This grieved him worst of all, that they had so bad an opinion of him as to think it possible to take him off from that foundation. The mere temptation was a buffeting to him, a thorn in his flesh, nay, a sword in his bones. Note, A child of God startles at the very thought of despairing of help in God; you cannot vex him with any thing so much as if you offer to persuade him that there is no help for him in God. David comes to God, and tells him what his enemies said of him, as Hezekiah spread Rabshakeh's blasphemous letter before the Lord. "They say, There is no help for me in thee; but, Lord, if it be so, I am undone. They say to my soul, There is no salvation" (for so the word is) "for him in God; but, Lord, do thou say unto my soul, I am thy salvation (Ps. xxxv. 3) and that shall satisfy me, and in due time silence them." To this complaint he adds Selah, which occurs about seventy times in the book of Psalms. Some refer it to the music with which, in David's time, the psalms were sung; others to the sense, and that it is a note commanding a solemn pause. Selah—Mark that, or, "Stop there, and consider a little." As here, they say, There is no help for him in God, Selah. "Take time for such a thought as this. Get thee behind me, Satan. The Lord rebuke thee! Away with such a vile suggestion!"
II. With a profession of his dependence upon God, v. 3. An active believer, the more he is beaten off from God, either by the rebukes of Providence or the reproaches of enemies, the faster hold he will take of him and the closer will he cleave to him; so David here, when his enemies said, There is no help for him in God, cries out with so much the more assurance, "But thou, O Lord! art a shield for me; let them say what they will, I am sure thou wilt never desert me, and I am resolved I will never distrust thee." See what God is to his people, what he will be, what they have found him, what David found in him. 1. Safety: "Thou art a shield for me, a shield about me" (so some), "to secure me on all sides, since my enemies surrounded me." Not only my shield (Gen. xv. 1), which denotes an interest in the divine protection, but a shield for me, which denotes the present benefit and advantage of that protection. 2. Honour: Thou art my glory. Those whom God owns for his are not safe and easy, but really look great, and have true honour put upon them, far above that which the great ones of the earth are proud of. David was now in disgrace; the crown had fallen from his head; but he will not think the worse of himself while he has God for his glory, Isa. lx. 19. "Thou art my glory; thy glory I reckon mine" (so some); "this is what I aim at, and am ambitious of, whatever my lot is, and whatever becomes of my honour—that I may be to my God for a name and a praise." 3. Joy and deliverance: "Thou art the lifter up of my head; thou wilt lift up my head out of my troubles, and restore me to my dignity again, in due time; or, at least, thou wilt lift up my head under my troubles, so that I shall not droop nor be discouraged, nor shall my spirits fail." If, in the worst of times, God's people can lift up their heads with joy, knowing that all shall work for good to them, they will own it is God that is the lifter up of their head, that gives them both cause to rejoice and hearts to rejoice.
In singing this, and praying it over, we should possess ourselves with an apprehension of the danger we are in from the multitude and malice of our spiritual enemies, who seek the ruin of our souls by driving us from our God, and we should concern ourselves in the distresses and dangers of the church of God, which is every where spoken against, every where fought against; but, in reference to both, we should encourage ourselves in our God, who owns and protects and will in due time crown his own interest both in the world and in the hearts of his people.
4 I cried unto the Lord with my voice, and he heard me out of his holy hill. Selah. 5 I laid me down and slept; I awaked; for the Lord sustained me. 6 I will not be afraid of ten thousands of people, that have set themselves against me round about. 7 Arise, O Lord; save me, O my God: for thou hast smitten all mine enemies upon the cheek bone; thou hast broken the teeth of the ungodly. 8 Salvation belongeth unto the Lord: thy blessing is upon thy people. Selah.
David, having stirred up himself by the irritations of his enemies to take hold on God as his God, and so gained comfort in looking upward when, if he looked round about him, nothing appeared but what was discouraging, here looks back with pleasing reflections upon the benefit he had derived from trusting in God and looks forward with pleasing expectations of a very bright and happy issue to which the dark dispensation he was now under would shortly be brought.
1. That his troubles had always brought him to his knees, and that, in all his difficulties and dangers, he had been enabled to acknowledge God and to lift up his heart to him, and his voice too (this will be comfortable reflection when we are in trouble): I cried unto God with my voice. Care and grief do us good and no hurt when they set us a praying, and engage us, not only to speak to God, but to cry to him, as those that are in earnest. And though God understands the language of the heart, when the voice is not heard (1 Sam. i. 13), and values not the hypocritical prayers of those who cause their voice to be heard on high (Isa. lviii. 4), vox et præterea nihil—mere sound, yet, when the earnestness of the voice comes from the fervency of the heart, it shall be taken notice of, in the account, that we cried unto God with our voice.
2. That he had always found God ready to answer his prayers: He heard me out of his holy hill, from heaven, the high and holy place, from the ark on Mount Sion, whence he used to give answers to those that sought to him. David had ordered Zadok to carry back the ark into the city when he was flying from Absalom (2 Sam. xv. 25), knowing that God was not tied, no, not to the ark of his presence, and that, notwithstanding the distance of place, he could by faith receive answers of peace from the holy hill. No such things can fix a gulf between the communications of God's grace towards us and the operations of his grace in us, between his favour and our faith. The ark of the covenant was in Mount Zion, and all the answers to our prayers come from the promises of that covenant. Christ was set King upon the holy hill of Zion (Ps. ii. 6), and it is through him, whom the Father hears always, that our prayers are heard.
3. That he had always been very safe and very easy under the divine protection (v. 5): "I laid myself down and slept, composed and quiet; and awaked refreshed, for the Lord sustained me." (1.) This is applicable to the common mercies of every night, which we ought to give thanks for alone, and with our families, every morning. Many have not where to lay their head (but wander in deserts), or, if they have, dare not lie down for fear of the enemy; but we have laid ourselves down in peace. Many lie down and cannot sleep, but are full of tossings to and fro till the dawning of the day, through pain of body, or anguish of mind, or the continual alarms of fear in the night; but we lie down and sleep in safety, though incapable of doing any thing then for our own preservation. Many lie down and sleep, and never awake again, they sleep the sleep of death, as the first-born of the Egyptians; but we lie down and sleep, and awake again to the light and comfort of another day; and whence is it, but because the Lord has sustained us with sleep as with food? We have been safe under his protection and easy in the arms of his good providence. (2.) It seems here to be meant of the wonderful quietness and calmness of David's spirit, in the midst of his dangers. Having by prayer committed himself and his cause to God, and being sure of his protection, his heart was fixed, and he was easy. The undutifulness of his son, the disloyalty of his subjects, the treachery of many of his friends, the hazard of his person, the fatigues of his march, and the uncertainty of the event, never deprived him of an hour's sleep, nor gave any disturbance to his repose; for the Lord, by his grace and the consolations of his Spirit, powerfully sustained him and made him easy. It is a great mercy when we are in trouble to have our minds stayed upon God, so as never either to eat or sleep with trembling and astonishment. (3.) Some of the ancients apply it to the resurrection of Christ. In his sufferings he offered up strong cries, and was heard; and therefore, though he laid down and slept the sleep of death, yet he awaked the third day, for the Lord sustained him, that he should not see corruption.
4. That God had often broken the power and restrained the malice of his enemies, had smitten them upon the cheek-bone (v. 7), had silenced them and spoiled their speaking, blemished them and put them to shame, smitten them on the cheek reproachfully, had disabled them to do the mischief they intended; for he had broken their teeth. Saul and the Philistines, who were sometimes ready to swallow him up, could not effect what they designed. The teeth that are gnashed or sharpened against God's people shall be broken. When, at any time, the power of the church's enemies seems threatening, it is good to remember how often God has broken it; and we are sure that his arm is not shortened. He can stop their mouths and tie their hands.
II. See with what confidence he looks forward to the dangers he had yet in prospect. Having put himself under God's protection and often found the benefit of it, 1. His fears were all stilled and silenced, v. 6. With what a holy bravery does he bid defiance to the impotent menaces and attempts of his enemies! "I will not be afraid of ten thousands of people, that either in a foreign invasion or an intestine rebellion set themselves, or encamp, against me round about." No man seemed less safe (his enemies are numerous, ten thousands; they are spiteful and resolute, "They have set themselves against me; nay, they have prevailed far, and seem to have gained their point; for they are against me round about on every side, thousands against one"), and yet no man was more secure: "I will not be afraid, for all this; they cannot hurt me, and therefore they shall not frighten me; whatever prudent methods I take for my own preservation, I will not disquiet myself, distrust my God, nor doubt of a good issue at last." When David, in his flight from Absalom, bade Zadok carry back the ark, he spoke doubtfully of the issue of his present troubles, and concluded, like a humble penitent, Here I am; let him do to me what seemeth to him good, 2 Sam. xv. 26. But now, like a strong believer, he speaks confidently, and has no fear concerning the event. Note, A cheerful resignation to God is the way to obtain a cheerful satisfaction and confidence in God. 2. His prayers were quickened and encouraged, v. 7. He believed God was his Saviour, and yet prays; nay, he therefore prays, Arise, O Lord! save me, O my God! Promises of salvation do not supersede, but engage, our petitions for it. He will for this be enquired of. 3. His faith became triumphant. He began the psalm with complaints of the strength and malice of his enemies, but concludes it with exultation in the power and grace of his God, and now sees more with him than against him, v. 8. Two great truths he here builds his confidence upon and fetches comfort from. (1.) That salvation belongeth unto the Lord; he has power to save, be the danger ever so great; it is his prerogative to save, when all other helps and succours fail; it is his pleasure, it is his property, it is his promise to those that are his, whose salvation is not of themselves, but of the Lord. Therefore all that have the Lord for their God, according to the tenour of the new covenant, are sure of salvation; for he that is their God is the God of salvation. (2.) That his blessing is upon his people; he not only has power to save them, but he has assured them of his kind and gracious intentions towards them. He has, in his word, pronounced a blessing upon his people; and we are bound to believe that that blessing does accordingly rest upon them, though there be not the visible effects of it. Hence we may conclude that God's people, though they may lie under the reproaches and censures of men, are surely blessed of him, who blesses indeed, and therefore can command a blessing.
In singing this, and praying it over, we must own the satisfaction we have had in depending upon God and committing ourselves to him, and encourage ourselves, and one another to continue still hoping and quietly waiting for the salvation of the Lord.

matches: V. v. v. v. v. v.


You’ve recently opened an estate in which the decedent, Mary, was an elderly woman, cared for by her niece for some years. The niece held Mary’s power of attorney. One day into your office arrives the decedent’s brother, bearing a fistful of checks written by the niece to herself from Mary’s account. The checks are in large, round numbers, and bear no apparent relationship to Mary’s needs or the niece’s service.
Your probate of an elderly man’s estate is proceeding quite normally when a caregiver calls you in tears to tell you she has photos of bruising and welts on the deceased. She has long suspected physical abuse by a relative.
Mr. and Mrs. Smith were married for twenty years. Both have children by their first marriages. Mr. Smith had cancer as well as early Alzheimer’s. Six months before he dies Mrs. Smith drives him to your office, where he executes a will leaving everything to her outright. His previous will left Mrs. Smith the estate in trust, and upon her death to his children. Now his children are petitioning for probate of the previous will.
And you thought a probate practice would keep you out of the courtroom? Chances are a probate practice will eventually land you in court, whether representing a party or as a witness. Here’s a road map and some ideas for litigating a probate case.
Pure probate litigation is commenced in Probate Court, in accordance with Rule 4. Typically, the deputy will serve the Notice (akin to a summons, form N-101) and the petition on the defendant, in hand if possible, or by some other means calculated to give the defendant actual notice of the action. You will have either filed the petition previously or you will file the petition and the Notice (showing the deputy’s proof of service) with the Register when you receive the deputy’s endorsed Notice.
At the point you may face a choice: Either continue to litigate in Probate Court, or remove to Superior Court.
Probate Court is faster – you will get to hearing in six to eight months. Thus it is inexpensive compared with Superior Court. In Superior Court there are trailing dockets, while in Probate Court you will probably have a date certain for trial, a huge advantage. The judge will have good familiarity with issues common in such litigation. You will be working within the familiar confines of the Register’s office. The hearing will be jury-waived, for better or worse. Because the trial will be to the judge alone, a practitioner who might not have the experience to perform a jury trial can, with care and work, do a good job for his or her client.
Superior Court, conversely, will be much slower: you cannot expect to get to trial short of eighteen months from filing the complaint. The discovery period alone will be six months or more. The court may be more adept at addressing discovery disputes and related issues. The trial may be jury-waived, although on most issues any party can elect to try the case to a jury, provided the election is timely made. There will be a scheduling order, and failure to adhere to the order can be disaster – for example, if you do not timely designate an expert witness, you may well be prevented from presenting that witness’s testimony, possibly resulting in your inability to make your case. Trial scheduling orders appear now in the Probate Court as well, but perhaps motions to enlarge may be met with more sympathy by a probate judge.
The characteristics of each court may dictate your choice of forum. Is your case factually complex, demanding a long investigation, and are the facts such that no deep expertise in probate law is required to appreciate the argument? Try the case in Superior Court. But if the case is simpler and turns on issues closely identified with probate law – e.g., the typical will contest – perhaps the Probate Court is your forum of choice.
Within twenty days of the matter being filed in Probate Court, either party can remove to the Superior Court of the same county, or to another county if the Superior Court can assert personal jurisdiction over the defendant in that county. If the Probate Court pleading (acting as the complaint) is amended by either party, either party has another opportunity to ask for removal. Rule 71A, M.R.P.P.
A will contest is a little like a murder trial: the most important witness is dead. Perhaps because the author of the will is not around to defend it, the cases reveal a societal bias in favor of giving effect to wills unless there is the strongest evidence of incapacity. The person seeking to overturn a will faces a major challenge.
There are two primary grounds for challenging a will: lack of testamentary capacity and undue influence. Challenges on the basis of mistake and fraud occur very rarely.
Keep in mind that there is no presumption of testamentary capacity. If you are the proponent of any will, whether or not challenged, you must make your prima facie case that the will was executed in accordance with law by an individual possessed of testamentary capacity. In the normal course the will is “self-proving” of execution and capacity, in accordance with Title 18-A M.R.S.A. § § 2-502, 2-504, and all you need to do is proffer the original will for administration. If the will is challenged, your entry into evidence of a self-proving will is sufficient to shift to the petitioner the burden of proving, by preponderance of the evidence, that the will should not be allowed. But don’t forget that the initial burden of proof is on the proponent of the challenged will. Estate of Mary Dodge, 576 A.2d 755 (Me. 1990).
Testamentary capacity is very different from contractual capacity. Estate of Marquis, 822 A.2d 1153 (ME. 2003). An insane person can execute a will, as can a drunk or someone demented with Alzheimer’s or other disease. What is required is that the testator be able to understand in a general way the contours of his estate (what he is proposing to devise), that he know to whom he is giving the estate, and those whom, although they be the “natural objects of his bounty”, he is excluding. Therefore, a man lacks testamentary capacity who is incapable of comprehending that he owns 800 acres on Northeast Harbor, that such land is worth millions, and that he also owns liquid assets commensurate with such wealth. The same man would lack testamentary capacity who understands the scope of his wealth but who cannot keep straight in his head that he has three children, one of whom is dead but whose children survive.
On the other hand, take the same man with the same mental deficits but possess him of nothing more than a simple house on a town lot and a few thousand in the bank, and a court might well deem him to have the power to devise by will, at least to the natural objects of his bounty.
It follows that testamentary capacity may turn on the complexity of the proposed will. One may possess the testamentary capacity to understand that he is omitting a child with a long prison record in favor of two others less criminally inclined, yet lack the capacity to execute a will creating a tax avoiding trust which funds a complex scheme of inheritance. The practitioner considering the drafting of a will for an individual whose capacity may reasonably be challenged must bear this principle in mind: the more complex the instrument, the more likely there is to be a successful challenge to testamentary capacity.
Accessory to this precept is that the court will consider any will which “sounds in folly” as tending to evidence an absent of testamentary capacity. If Aunt Ida leaves her savings bonds to a home for wayward cats, be prepared to demonstrate rather well that she intended to do exactly that.
The bottom line is that you generally cannot offer the testator’s hearsay testimony that he or she intended to make the will offered for probate. The challenge, therefore, is to prove that the testator had such mental capacity that he or she must have intended to execute the offered will.
The starting point is the will itself. A will suggesting testamentary capacity is clear, devises to the natural objects of the decedent’s affections, and otherwise demonstrates a logical estate plan. On the other hand, perhaps the will contains a scrivener’s error, one which a lucid testator might be expected to catch on review of drafts or at execution. That the error survived to be in the published will may be evidence that the testator lacked capacity to understand or perhaps even to read the will. If you will allow such an error into a will you draft, let it not be in the will of one whose capacity may be challenged.
An earlier will may also be evidence, if it suggests that the challenged will represents a logical evolution in the estate plan.
Testimony of changes in the decedent’s personality, mood swings, habits and lifestyle all suggest the possibility of mental disease.
The opinion of the decedent’s doctor is almost always of extreme importance. In fact, one former southern Maine probate judge asserted, when on the bench, that if there is a doctor’s mental capacity evaluation on the same day as the will execution, and if the evaluation credibly demonstrates testamentary capacity, the issue is essentially determined.
Because the doctor’s opinion is so determinative, do more than simply write to the doctor with a request for an opinion. Instead, visit the doctor, provide the background in a light sympathetic to your client, and explain why the doctor’s opinion is so important. Remember, once a doctor has offered an opinion in writing he or she will feel obliged to provide further testimony consistent with that all important first opinion. Interviewing nurses and aides is likewise critical, of course.
If the decedent consulted with other professionals, such as bankers or investment advisers, in and around the time of the will’s execution, their testimony may be useful. In fact, any evidence of the decedent’s consulting with people about important matters – banking and investing, but also house or car repairs and the like – is important.
Most of us remember the phrase “lucid interval” from law school. A person can be demented or insane, and yet if he or she can for a few moments possess testamentary capacity, he or she can execute a will during that interval. In Re Loomis, 133 Me 81, 174 A. 38 (1934); Estate of Rosen, 447 A.2d 1220, 1222 (Me. 1982). The doctrine most often comes into play where a putative testator has “good days and bad days.” If you can elicit testimony that the decedent’s dementia varied widely from day to day, or even within each day, you may be able to make the case that execution occurred during a lucid interval. Perhaps there is evidence that mornings were when this person was at his or her best, and that is when the will execution occurred. Similarly, a drunk may possess testamentary capacity if execution occurs early in the day – another lesson for the practitioner preparing a will for a person who drinks to excess.
There are other ways you can minimize the possibility of a will being contested. One I have already mentioned, obtaining a doctor’s evaluation prior to execution. Occasionally, when a will contest is a real possibility but the testator presents him or herself well, the execution may be videotaped. The obvious peril of video is that the testator may come off looking not at all well, and then the video becomes damning rather than supporting. And it looks hardly better that the family or attorney decided to dispose of an unflattering videotape.
A common and sensible alternative is a detailed, factual memorandum written by the attorney immediately after the will signing ceremony and showing the basis for the assertion of testamentary capacity. The subscribing witnesses’ testimony will also be important, and they should be asked to make memoranda as well. If you suspect a will contest may occur, perhaps the execution should be witnessed by three witnesses and a notary (if the will will be self-proving).
A plea asserting lack of testamentary capacity is almost always accompanied by a plea of undue influence. This is logical when one considers that a person who is getting on in years, becoming forgetful and even a bit feeble, is surely more susceptible to influence that rises to the level required to sustain a will challenge. Therefore any investigation of undue influence should undertake a thorough investigation into the physical and mental condition of the testator.
Any person making a will is influenced. Influence rises to a level which will void a will when the influence is coercive, or destructive of free agency. In Re Crockett, 147 Me. 173, 84 A.2d 808 (1951). A comprehensive definition is “[i]nfluence in connection with the execution of the will, and operating at the time the will is made, amounting to moral coercions, destroying free agency, or opportunity which could not be resisted, so that the testator, unable to withstand the influence, or too weak to resist it, was constrained to do that which was not his actual will but against it.” Estate of Bridges, 565 A.2d 316, 317 (Me. 1989).
+A person may be pressured to make a will, and it may be clear that without someone’s pressure the will would not have been made, but that is not by itself undue influence. Id. “[K]indness, entreaty, the offer of inducement to gain the making of a will in one’s favor, is legitimate, so long as he who made the will had the free choice to make it or not.” In Re Will of Fenwick, 348 A.2d 12 (Me. 1975).
The existence of a confidential relationship between the testator and the one said to have influenced him or her, and the presence of opportunity on the part of the “influencer”. Domineering behavior on the part of the suspect may also be seen.
That the challenged will disposes of the property in an illogical manner, or in a manner which departs from the previous will or previous declarations of intent.
Evidence that the testator was unusually susceptible to influence, perhaps because of illness (especially mental illness) or loneliness.
Circumstantial evidence of an effort to gain undue influence, such as persuading the testator to keep from others the fact that he changed his will.
Unusual circumstances surrounding the execution of the will, such as the will not having been executed under the supervision of a lawyer (but perhaps in the presence of the influencer), or the alleged influencer insisting on remaining in the room while the testator is being counseled.
In Re Will of Fenwick, 348 A.2d 12 (Me. 1975); Estate of Turf, 435 A.2d 1087 (Me. 1981).
The person challenging the will must prove undue influence by clear and convincing evidence. Russo v. Miller, 559 A.2d 354, 357 (Me. 1989); Estate of Langley, 586 A.2d 1270 (Me. 1991). Therefore the fact finder “must be convinced of the essential elements [of undue influence] to a high probability.” Taylor v. Commissioner of Mental Health, 481 A.2d 139 (Me. 1984). The burden is high; to see just how high, you may want to read Estate of Horne, 822 A.2d 1177 (Me. 2003).
If you suspect breach of fiduciary duty, get releases from the Personal Representative and obtain the financial records of the victim. Then put together a paper trail showing income into the estate and out. If the funds are commingled, you must of course show in whose account the funds were held. The assistance of an accountant will likely be required, either simply to assist your investigation of for eventual use as an expert witness.
On the other hand, if you are less certain of the facts or the amount is small, you may wish to cite the defendant to appear before the Probate Court, under Title 18-A M.R.S.A. §3-110. This useful section provides that the Personal Representative “or other person interested in the Estate” may petition the Probate Court to cause persons suspected of taking property of the Estate to appear and be examined under oath. The individual may be commanded to bring documents, and the section provides for interrogatories as well. Perhaps a useful technique would be to serve interrogatories and a request for production in advance of the examination. Although §3-110 does not expressly provide for documents to be produced in advance of hearing, the individual might nonetheless respond, and in any event the Citation to Appear will be accompanied by the requirement that the cited person bring with him or her that same list of documents.
Some courts provide for the examination to be before the court. Others, including Cumberland County, generally provide that the examination is in the nature of an out of court deposition. Either way the section provides a means of inexpensively placing a suspected person under oath for examination.
Sometimes the person suspected of foul play has become the personal Representative, or is otherwise disinclined to discharge his or her duty to marshal the assets of the estate. Short of moving to disqualify that person, §3-110 allows another heir to cite the suspect into court for examination, at small cost.
If the person will be cited for fraud against the decedent or the estate, the action must be commenced within six years of the commission of the fraud but within two years of the fraud’s discovery. Title 18-A M.R.S.A. §1-106.
If you suspect physical or emotional abuse of the decedent, you will probably be made aware of whether the Department of Human Services has investigated. If there has been an investigation, and if a civil action alleging the abuse is pending (in Superior Court), obtain the D.H.S. file by filing a Motion for Clifford Order. In the normal course records of D.H.S. investigations are confidential. The Clifford Order motion asks the D.H.S. to review the file and determine which aspects are relevant to your inquiry. D.H.S. will transfer those portions of the file to the court, after redacting the names of informants. The court will then arrange for your review, at the clerk’s office, of the redacted file. Copies are generally not available, although if specific need exists for a specific document you may apply to the court. Clifford Order motions, although perhaps not typically seen in elder law, are a common feature of litigation of Child Protective Order petitions. I attach an exemplar motion and proposed order, together with an exemplar complaint alleging both financial and physical abuse.
In Maine, as in most jurisdictions, a will copy may be probated even if the original is lost. However, probate of a will copy requires a petition for formal probate and an opportunity for interested parties to object. That’s where is can get interesting.
The presumption of revocation may be rebutted by evidence that the testamentary intent of the testator did not change between his execution of the will and his death. It is the proponent of the will copy’s burden to demonstrate the sustained testamentary intent, and the evidence of sustained testamentary intent must be “clear and convincing.” Liberty v. Haines, 103 Me. 182, 192, 68 A. 738 (Me. 1907).
Therefore, a lost will case demands a thorough investigation.
What did the testator say to his friends, relatives, siblings etc. about estate planning? These comments, although hearsay, come is to show the testator’s state of mind.
Is there any physical evidence of destruction, whether intentional or inadvertent? See 79 Am.Jur.2d Wills §606 (relevant whether others had access to the will, who might have destroyed it).
 Some of the cases are Chandler Will Case, 102 Me. 72, In Re Loomis, 133 Me. 81, 174 A. 38 (Me. 1934), and In Re Siebert, 1999 ME 156, 739 A.2d 365. Page on Wills, 2003 ed., Volume One beginning in chapter 12 is also excellent.
 Rule 803(3) states: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
 More than in many areas of probate litigation, hearsay and other evidence of a testator’s intent is an area of rapid change, and good research is demanded if the evidence you seek to admit or exclude may be excludable.
 See Wills, Trusts and Estates, J. Dukeminer and S.M. Johanson (Little, Brown 1984).


The Court of Claims was not estopped by the recitals in the Act of January 17, 1887, 24 Stat. 358, c. 21, referring this case to it, from considering the question of the title of the claimants to the property whose value is sought to be recovered.
The commissioners appointed by the governments of the United States and of Russia for the transfer of Alaska under the Treaty of March 30, 1867, 15 Stat. 539, had no power to vary the language of the treaty or to determine questions of title or ownership.
The building constructed by the Russian-American Company in 1845 on land belonging to Russia became thereby, so far as disclosed by the facts in this case, the property of the Russian government, and, being transferred to the United States by the Treaty of March 30, 1867, no property or ownership in it remained in the Russian-American Company which it could transfer to a private person adversely to the United States.
This was a petition by John H. Kinkead and Samuel Sussman, claiming to be the owners and lawfully possessed of a certain warehouse in Sitka, Alaska, for the rent of a part of such warehouse at the rate of $200 per month, from December 15, 1868, to December 15, 1888, the date of the petition, amounting to $48,000, and also the further sum of $69,300 for rent of another part of the same building from September 12, 1869, to December 15, 1888; together with the further sum of $50,000 for the value of the building, the aggregate amount of the claim being $167,300.
Petitioners claimed to have purchased the building from the Russian-American Company through Prince Maksoutoff, chief factor, for the sum of $3,000 in gold.
A former petition for the same claim had been presented to the Court of Claims, and dismissed by it for want of jurisdiction upon the ground that, as the title set up by the claimants depended upon the construction of the treaty between the United States and the emperor of Russia, the court was without jurisdiction over the same. 18 Ct.Cl. 504. Whereupon claimants procured the passage of an Act of Congress, approved January 17, 1887, referring their claim to the Court of Claims for adjudication.
The petition under consideration having been heard, the court made a finding of facts, the substance of which appears in the opinion of this Court, and entered a judgment dismissing the petition upon the ground that Kinkead and Sussman had no title to the property in question. From this judgment, petitioners appealed to this Court.
"that at the time Alaska was ceded by Russia to the United States, there was standing on a certain lot adjacent to the public wharf in the Town of Sitka a building, constructed of hewn logs, 118 feet in length and 50 feet in width. The land upon which this building stood belonged to Russia, and was thus embraced in the cession to the United States."
This building was erected in 1845 by the Russian-American Company at their own expense, and from that time to the date of the treaty had been used by said company as a warehouse for the storage of furs and other property, and for trading purposes.
By what authority from Russia this land was built upon and occupied by said company, further than is shown in finding II (which relates solely to proceedings taken for the transfer of the ceded territory) "does not appear."
"all the territory and dominion now possessed by his said majesty on the continent of America and in the adjacent islands, the same being contained in the geographical limits herein set forth, to-wit: [boundaries]. "
"in the cession of the territory and dominion made by the preceding article are included the right of property in all public lots and squares, vacant lands, and all public buildings, fortifications, barracks, and other edifices which are not private individual property."
"for doing any other act which may be necessary in regard thereto. . . . But the cession, with the right of immediate possession, is nevertheless to be deemed complete and absolute on the exchange of ratifications, without waiting for such formal delivery."
"the cession of territory and dominion herein made is hereby declared to be free and unencumbered by any reservations, privileges, franchises, grants, or possessions, by any associated companies, whether corporate or incorporate, Russian or any other, or by any parties, except merely private individual property holders."
"I must insist upon that clause in the sixth article of the draft which declares the cession to be free and unencumbered by any reservations, privileges, franchises, grants, or possession by any associated companies, whether corporate or incorporate, Russian or any other, etc., and must regard it as an ultimatum. With the President's approval, however, I will add two hundred thousand dollars to the consideration money on that account."
To this letter the Russian minister made reply that he believed himself "authorized to accede literally to this request on the conditions indicated" in the note of the Secretary.
regard to proceeding as soon as may be convenient to the territory,"
"Pursuant to the stipulations of the treaty, that transfer will include all forts and military posts and public buildings, such as the governor's house, and those used for government purposes, dockyards, barracks, hospitals, and schools, all public lands, and all ungranted lots of ground at Sitka and Kodiak. Private dwellings and warehouses, blacksmiths', joiners', coopers', tanners', and other similar shops, ice houses, flour and saw mills, and any small barracks on the island are subject to the control of their owners, and are not to be included in the transfer to the United States."
The commissioners were further instructed to draw up and sign full inventories, distinguishing between the property to be transferred to the United States and that to be retained by individuals, and were also instructed to furnish the proprietors of individual property with a certificate of their right to hold the same upon production of documentary or other proof of ownership.
"As it is understood that the Russian-American Company possess in that quarter large stores of furs, provisions, and other goods now at Sitka, Kodiak, and elsewhere on the main land and on the island, it is proper that that company should have a reasonable time to collect, sell, or export that property. For that purpose, the company may leave in the territory an agent or agents for the purpose of closing their business."
"I found that by the charter of the Russian-American Company, it had authority to vest in its employees, occupants of land in the territory, the title thereto. This was on condition, however, that the possessions of the Indians should not be interfered with."
children in the territory, the title was frequently vested in them."
"Finding in its charter this authority of the company to vest title to land in its employees, and that very many of the dwellings erected by the company were occupied by employees or their widows and children, who claimed the property in fee, the commissioners called on the Governor, Prince Maksoutoff, to define and certify to the interest of each individual thus occupying such dwellings and lots, in order that we might distinguish between those who owned the property in fee and those who claimed a less interest, and in compliance with your instructions give certificates to the claimants accordingly."
"The inventories, respectively marked 'C' and 'D' (forming part of the protocol) which are forwarded with this report will show in part the action of the Governor in the premises. For the rest, he gave a certificate stating the interest of each occupant in the premises occupied, on the back of which the commissioners placed their approval, and it was left to be delivered to the occupant."
"In order to be accurate, and prevent disputes hereafter about the title to houses and lots, we made a map of New Archangel (forwarded with this report) on which every house and dwelling in the town is located and numbered, and, as between the claimant and the United States, the title defined to it and settled in the inventories. This was thought necessary in order to give, in accordance with your instructions, to each man of property who desired to dispose of it a certificate of title."
"The Town of New Archangel [now Sitka] was built in the main by the Russian-American Company, and, except the dwellings transferred by them to their employees, and the public buildings transferred to the United States, is owned by that company still. Yet it has but a possessory interest in the land, as it only had permission to erect buildings upon it, for although it had authority to vest the title of lands in its employees, it had no power to vest such title in itself. The commissioners left the matter as they found it, and the company in possession of its buildings. "
"All the buildings in any wise used for public purposes were delivered to the United States commissioner, taken possession of, and turned over to General Davis, as were also the public archives of the territory, and in a spirit of liberality the wharf and several valuable warehouses belonging to the Russian-American Company were included in the transfer by the Russian commissioner. Both the wharf and the warehouses were very much needed by our people."
"the forts and public buildings, including the governor's house, dockyards, blockhouses, barracks, batteries, hospitals, wharves, and schools in the Town of New Archangel, an inventory of which, marked 'A,' was attached. We gave certificates of ownership to the individual owners of private houses and of lots in fee simple in the Town of New Archangel, as directed, a list of whose names in presented in inventory marked 'C,' attached to and made part hereof. In inventory marked 'D,' attached to and made part hereof, are shown the house and buildings owned by private individuals in New Archangel, the owners thereof having no title in fee to the lands on which they are situated."
"the property in dispute in this suit is not included in inventory C, where are found the names of owners to whom the commissioners gave certificates of title, but in inventory D, which is a list of buildings, the owners of which have no title in fee to the land on which they are situated."
No owner of this building was named.
"William S. Dodge was appointed collector of customs at Sitka, and in June or July, 1868, he was in possession and occupancy of the northern part of the building described in the claimants' petition, which he used as a custom warehouse. At the same time and afterwards, the claimant Sussman was in the occupancy of another part of the building."
This occupancy was continued by Dodge and his successors in the office of collector of customs.
that a very large part of the property which belonged to the Russian Fur Company was enjoyed by persons claiming title by purchase from that company after the cession of the territory, the Secretary of War directed the military commander of the Department of Alaska to take possession of and retain in his charge all posts, buildings, etc., which were not in fact entitled to be considered individual property. In pursuance of this order, the commanding general took possession of the entire building in question, which has since been claimed and occupied by the government.
Claimant Kinkead protested against this seizure, claiming that the building had been designated as private property, that it had been purchased of the Russian-American Company, and that the title acquired was good, valid, and legal.
It further appeared that in December, 1868, Mr. Ketchum, then collector of customs, assumed to lease from Sussman, as agent for Louis Sloss, to whom the Russian Company had given a deed, part of the warehouse in question at a monthly rental of $200. This lease, however, was promptly disapproved by the Secretary of the Treasury, who advised him that no building could be hired by him for any purpose without the previous assent of the department.
possessed not only the ordinary powers of a trading corporation, but certain governmental powers, which it exercised arbitrarily, if not despotically, over the entire territory. It had a monopoly of the trade of the territory, and appears to have been in fact a provincial government of the Russian empire.
As no question is made but that the land upon which this building is situated belonged to the Russian government, and that the building was erected in 1845, by permission of the Emperor, for the use of this company in the storage and sale of its furs, and for other trading purposes, and was so constructed of heavy, hewn logs as to be incapable of removal, no good reason is apparent for excepting it from the ordinary rule which attaches such buildings to the realty. The presumption is that buildings belong to the owner of the land on which they stand as a part of the realty. Quicquid plantatur solo, solo cedit.
"If one erects a permanent building, like a dwelling house, upon the land of another voluntarily, and without any contract with the owner, it becomes a part of the realty, and belongs to the owner of the soil."
Madigan v. McCarthy, 108 Mass. 376; Taylor on on Land. & Ten. § 544.
It is true there is abundant authority for holding that buildings may, by agreement of parties, be erected upon land without becoming affixed thereto, and that neither the mode of annexation nor the use thereof is conclusive as to the intention of the parties, although the presumption is that the building so erected becomes a part of the freehold. Wood v. Hewitt, 8 Q.B. 913; Crippen v. Morrison, 13 Mich. 23; Mott v. Palmer, 1 N.Y. 564; Sudbury v. Jones, 8 Cush. 184; Howard v. Fessenden, 14 Allen 124.
assumed that the letter of Mr. Seward was intended to be confined to such franchises.
It may be remarked in this connection that there is a manifest inconsistency in the positions assumed by the petitioners. Their only right in this building is derived from a deed of the land which confessedly belonged to the Russian government. Yet the whole theory of the petitioners' case rests upon the assumption that the building was erected under such circumstances that it was not intended to become a part of the freehold. Consistency, then, would seem to require that the deed should be of the building alone, whereas it is in fact a deed of the land, and can only pass the building upon the theory that the building was affixed to the land, a theory quite inconsistent with the petitioners' contention. If the building were so constructed as to be removable, there would be some reason for saying that it was not contemplated that it should become a fixture, but the difficulty with petitioners' claim is that they cannot assert title to the building without also asserting title to the land.
"the transfer will include the forts and military posts and public buildings, etc., all public lands, and all ungranted lots of land, etc., while private dwellings and warehouses are subject to the control of their owners, and are not included in the transfer. . . . In order, however, that the said individual proprietors may retain their property as aforesaid,"
"except the dwellings transferred by them to their employees, and the public buildings transferred to the United States, is owned by that company still;"
"all the buildings in any wise used for public purposes were delivered to the United States commissioner, . . . and in a spirit of liberality the wharf and several valuable warehouses, belonging to the Russian-American Company, were included in the transfer."
itself for the time being, and what should be left to the individual proprietors. To treat this inventory as binding either upon the government or individuals would be to acknowledge that the commissioners were invested with judicial powers to determine the title to property. Clearly they had no power to depart from the plain language of the treaty and no power to bind the government by an assumption that government property was private property, and thus settle questions of title or ownership. The weight that has been given to contemporaneous construction has never gone to the extent of holding that the title or ownership of property may be changed by the action of executive officers appointed to carry a statute or treaty into effect.
The case of Comegys v. Vasse, 1 Pet. 195, relied upon by the petitioners, is readily distinguishable from the case under consideration. In the treaty with Spain for the cession of Florida, the United States undertook to make satisfaction of certain claims of Spanish subjects; and, by article 11, to ascertain the full amount and validity of those claims, a commission, to consist of three commissioners, was to be appointed "to receive, examine, and decide upon the amount and validity of all claims," etc. Such commissioners were to act under oath for the faithful discharge of their duties, and were authorized to hear and examine witnesses upon oath and to receive all suitable testimony. In other words, they were invested with judicial power to pass upon these claims, and their decision, within the scope of this authority, was held to be conclusive and final. Said Mr. Justice Story (p. 26 U. S. 212): "The parties must abide by it as the decree of a competent tribunal of exclusive jurisdiction." But even in this case it was held that their authority did not extend to the adjustment of all conflicting rights of different citizens to the fund so awarded. The rights of the several claimants to the fund were left to the ordinary course of judicial proceedings in the established courts of justice. The powers of the commissioners in this case were evidently of a very different character from those delegated to General Rousseau.
"from the Russian-American Company, the owner of said building, and"
"Whereas said building had been declared by the protocol of the transfer of Russian America to the United States to be private property; and"
"Whereas thereafter the collector of customs of the United States did take from said Kinkead and Sussman a lease of a portion of said building, and entered thereupon; and"
"Whereas afterwards General Jefferson C. Davis did seize the whole of said building, on the ground that the same was the property of the United States, notwithstanding the commissioner appointed to ascertain private property had certified the same to be private property: . . ."
"Therefore be it enacted, . . . that jurisdiction be, and is hereby, conferred on the Court of Claims to hear the claims,"
"for the rent and value of certain buildings . . . alleged by them to have been acquired by virtue of purchase from the Russian-American Company, upon the evidence already filed in said court, and such additional legal evidence as may be hereafter presented on either side, and if said court shall find that said parties acquired a valid title to said buildings respectively alleged to have been purchased by them, said court shall award said parties a fair and reasonable rent,"
the statute, and never denied by anyone, but upon the title of the Russian-American Company, and its right to convey, which had been called in question by the refusal of the Secretary of the Treasury to allow the petitioners' claim for rent, it is impossible that Congress could have intended by the recital to estop the Court of Claims from passing upon the very question referred to it for judicial determination. Petitioners assert that the whole object of the act was to permit the Court of Claims to pass upon the reasonableness of the rent and the value of the building. This theory, however, is not only wholly inconsistent with the enacting words, but with the position assumed by the officers of the government prior to the enactment in question. Indeed, there had been no dispute between the parties as to the amount of the rent, but there had been a seizure of the property by a military officer of the United States under express directions of the Secretary of War, and a total repudiation by the Secretary of the Treasury of the act of Ketchum, collector of customs, in assuming to lease this building, and a denial of any claim for rent. In the face of these proceedings, it is wholly improbable that Congress should have admitted the ownership of the Russian-American Company, which was the question upon which the liability of the government wholly depended. Petitioners insist that the Court of Claims should have accepted the preamble as a correct recital of the fact, and should have determined first whether the petitioners had acquired the building in controversy by virtue of purchase from the Russian-American Company, and second whether the petitioners had acquired a valid title to said building. The fact that Kinkead and Sussman had purchased the building was as distinctly set forth in the first recital as that the Russian-American Company was the owner, and if it were unnecessary for it to determine one question, it was equally so to determine the other.
"whilst the recital of public acts are regarded as evidence of the facts recited, it is otherwise, as we have seen, with reference to private acts. They are not evidence except against the party who procured them."
"that the Secretary of the Treasury be, and he is hereby, authorized and directed to remit, refund, and pay back, out of any moneys in the Treasury not otherwise appropriated, to the following named citizens of Tennessee . . . the amount of taxes assessed upon and collected from the said named persons, contrary to the provisions of the regulations issued by the Secretary of the Treasury,"
"speaks of the sums as being 'the amount of taxes assessed upon and collected from the said named persons contrary to the provisions of the regulations' named, there is no indication of any intention to submit to any one the determination of the question whether the taxes in any case were collected contrary to the provisions of such regulations, or of the question how those provisions are to be construed."
It needs no argument to show that there is a wide distinction between an act directing a particular thing to be done and an act reciting the existence of certain facts which had long been a matter of dispute, and which the Court of Claims was authorized by the act to pass upon and determine.
became the Act of January 17, 1887, which report was in favor of the justice of the claim. In accordance with this report the committee submitted a bill conferring jurisdiction upon the Court of Claims to hear this claim upon the evidence already filed and such additional legal evidence as might be presented, and directing said court to award a fair and reasonable rent, etc. The bill, however, was amended upon the floor of the Senate by inserting the words, "if said court shall find that said parties acquired a valid title to said buildings, respectively, alleged to have been purchased by them," thus evincing a clear intention on the part of the Senate to require the petitioners to satisfy the court of the validity of their title to the building. We think it clear there is nothing in the recital of the act which even throws a doubt upon the intention of Congress to require the court to be satisfied of this fact.
The truth is that the whole case of the claimants depends upon the question whether the government was bound by the proceedings of the commissioners in the execution of the treaty. As we have already expressed the opinion that they possessed no power to vary the language of the treaty or to determine questions of title or ownership, it results that their action was not binding upon the government.
MR. JUSTICE SHIRAS, with whom concurred MR. JUSTICE FIELD, dissenting.
and private rights annulled. The people change their allegiance; their relation to their ancient sovereign is dissolved, but their relations to each other and their rights of property remain undisturbed. If this be the modern rule even in cases of conquest, who can doubt its application to the case of an amicable cession of territory?"
Upon this view of the subject it might be justly expected that when, in 1867, a treaty for the cession of the dominions of Russia in America was concluded between the United States and the Emperor of Russia, the rights of private property would remain undisturbed. Nor would that just expectation be disappointed, for, on reading the treaty, we find explicit provisions preserving and excluding from the operation of the cession private property. It, however, appears that portions of the ceded territory had been occupied by an association or company known as the Russian-American Company, and which seems to have claimed and exercised an almost despotic control over the sparse population, whether native or Russian, and also to have been possessed, by grant from the Russian government, of certain franchises and privileges the precise nature and extent of which are not disclosed. Aware of the existence of this company, and apparently fearful lest troublesome contentions as to such special privileges and franchises might afterwards arise, the government of the United States insisted on the insertion in the treaty of an explicit article providing that the cession of territory and dominion should be declared to be free and unencumbered by any reservations, privileges, franchises, grants, or possessions by any associated companies, whether corporate or incorporate, Russian or any other, or by any parties except merely private individual property holders.
The fourth article of the treaty provided that the Emperor of Russia should appoint an agent or agents for the purpose of formally delivering to a similar agent or agents, appointed on behalf of the United States, the territory, dominion, property, dependencies, and appurtenances which were ceded, and for doing any other act which might be necessary in regard thereto.
"Pursuant to the stipulations of the treaty, that transfer will include all forts and military posts and public buildings, such as the Governor's house, and those used for governmental purpose, dockyards, barracks, hospitals, and schools; all public lands, and all ungranted lots of land at Sitka and Kodiak. Private dwellings and warehouses, blacksmiths', joiners', coopers', tanners', and other similar shops, ice houses, flour and saw mills, and any small barracks on the islands, are subject to the control of their owners, and are not to be included in the transfer to the United States."
"3. All the forts and military posts will be delivered at once to the American military forces that may follow the United States commissioner. . . ."
"4. The public buildings, such as the Governor's house, the buildings used for government purposes, dockyards, barracks, hospitals, schools, public grounds, and all free lots at Sitka and Kodiak, will be delivered by Captain Pestchouroff to the American commissioner as soon as practicable."
"5. All the houses and stores forming private property will remain, to be disposed of by their proprietors. To this same category belong smiths', joiners', coopers', tanners', and other similar shops, as well as ice houses, saw and flour mills, and any small barracks that may exist on the islands. . . ."
H.R.Ex.Doc. No. 177, 40th Cong., 2d Sess. p. 19.
and dominion therein named; also the forts and public buildings, including the Governor's house, dockyards, blockhouses, barracks, batteries, hospital, wharves, and schools in the Town of New Archangel, an inventory whereof, marked "A," was attached to the protocol. It further appears that an inventory, marked "B," was attached, describing the church buildings, etc., left in the hands of the Greco-Russian Church, and that an inventory, marked "C," was attached, giving a list of certain lots and houses held in fee simple by persons named, and an inventory, marked "D," was likewise attached, showing the houses and buildings owned by private individuals in New Archangel, the owners thereof having no title in fee to the land on which the buildings were situated.
The building in question in this case was specified in inventory "D" as private property.
"that piece or parcel of land situate near and adjoining to the public wharf of said city, upon which is erected building No. 1, and described as a warehouse in the map and inventory 'D,' attached to and made a part of the protocol of the transfer of said territory to the United States by Russia, and therein declared to be private property."
The title of Louis Sloss, by deed of October 28, 1887, was declared to have been taken and held by him for and on account of John H. Kinkead and Samuel Sussman.
who continued in the same occupancy till March 4, 1869, when he resigned the office and turned the warehouse over to Samuel Falconer, the deputy collector of the port.
Before and after the last-named date, General Jefferson C. Davis, United States army, was at Sitka, in command of the Department of Alaska.
"It having been reported to this department that a very large portion of the property which belonged to the Russian Fur Company in Alaska is now enjoyed by persons claiming title under a purchase from Prince Maksoutoff since the cession of that territory to the United States, the Secretary of War directs that you take possession of and retain in your charge all posts, buildings, etc., which are not in fact entitled to be considered individual property."
In pursuance of this order, General Davis, on the second of June, 1869, authorized Falconer to take possession of and use the whole building for government purposes pertaining to the Treasury Department, except the three lower rooms of it, situated on the southeast side of the lower passageway, which rooms were reserved by General Davis for the storage of army stores, and were, in the month of September following, placed under the control of the Quartermaster's Department of the Army.
From that time to the present, the whole building has remained in the possession and use of the government, Falconer continuing in the occupancy of the part of it so assigned to him until August, 1869, when he turned it over to William Kapus, who had been appointed collector of the port.
On June 2, 1869, the claimants protested in writing to General Davis against his action in taking possession of said building, alleging that the building had been designated as private property by the commissioners appointed by the governments of Russia and the United States; that it had been purchased of Prince Maksoutoff, chief factor of the Russian-American Company, and that the title acquired through that purchase was good, valid, and legal.
Failing to get redress from the agents and officers of the United States, Kinkead and Sussman brought an action in the Court of Claims for use and occupation of the premises, which suit was by that court dismissed for a supposed want of jurisdiction. Kinkead v. United States, 18 Ct.Cl. 504.
"An act referring to the Court of Claims for adjudication the claims of John H. Kinkead, Samuel Sussman, and Charles O. Wood."
"Whereas John H. Kinkead, of Nevada, and Samuel Sussman, of California, did, on the twenty-eighth day of October, eighteen hundred and sixty-eight, purchase a certain building situate on lot known as number one on the official plat of the Town of Sitka, in the Territory of Alaska, from the Russian-American Company, the owner of said building; and"
"Whereas thereafter the collector of customs of the United States did take from said Kinkead and Sussman a lease of a portion of said building and entered thereupon; and"
"Whereas afterwards, General Jefferson C. Davis did seize the whole of said building on the ground that the same was the property of the United States, notwithstanding the commissioners appointed to ascertain private property had certified the same to be private property; and"
"Whereas afterwards, said Kinkead and Sussman did present their petition to the United States Court of Claims claiming rent for the said building; and"
"Whereas said court did, on the eleventh day of June, eighteen hundred and eighty-three, dismiss said claim for want of jurisdiction only; and"
and did in like manner present his petition to the Court of Claims for rent of the same, the same having been in like manner seized for the use of the United States, notwithstanding the same had been certified to be private property; and"
"Whereas said Court of Claims did in like manner dismiss the claim of said Wood for want of jurisdiction only, therefore"
"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that jurisdiction be, and is hereby, conferred on the Court of Claims to hear the claims of John H. Kinkead and Samuel Sussman and Charles O. Wood for the rent and value of certain buildings in the Town of Sitka, in the Territory of Alaska, alleged by them to have been acquired by virtue of purchase from the Russian-American Company, upon the evidence already filed in said court and such additional legal evidence as may be hereafter presented on either side, and if said court shall find that said parties acquired a valid title to said buildings respectively alleged to have been purchased by them, said court shall award to said parties a fair and reasonable rent for the use of the said buildings for the time (if any) the same have been occupied by the United States, and also a suitable indemnity for said buildings themselves, and the receipt of such rent and indemnity shall thereafter bar any further claim by said parties for the use of said buildings or for the value thereof, and before receiving the same all of said parties shall execute a release to the United States for all right, title and interest whatsoever in and to the said property, and any defense, setoff, or counterclaim may be pleaded by the United States as defendants as in cases within the general jurisdiction of the court, and either party shall have the same right of appeal as in such cases."
if any, the same had been occupied by the United States, and also a suitable indemnity for the buildings themselves."
It was contended in the court below on behalf of the claimants that under the terms of the act, it was not open for the court to determine whether the claimants were precluded by the treaty from maintaining their claim, but that as the act in its recitals declared that the Russian-American Company was the owner of said building, the court's inquiry was restricted to finding whether the claimants had acquired a valid title to the buildings alleged to have been purchased by them, and to fixing a fair and reasonable rent for the time the same had been occupied by the United States, and also a suitable indemnity for the buildings themselves, and it was also contended that even if the act of Congress allowed the Court of Claims to inquire into the meaning and effect of the treaty, yet that the claimants were, taking into view the treaty, the protocol, and the act of Congress, entitled to recover.
The Court of Claims decided both contentions against the claimants. It held that notwithstanding the terms of the act, the court had a right to interpret the terms of the treaty, and having found, as it did, that under the terms of the treaty, the building in question had become the property of the United States, it further held that there was nothing in the acts of the commissioners characterizing the building as private property, or in the act of Congress, referring the matter to this Court, which created or conferred any right or title in the building to the claimants.
"The Court of Claims held that the statute did not leave open any question for the court except the identity of the claimants with the persons named in it, and that its language, taken together, was too clear to admit of doubt that Congress undertook, as it had a right to do, to determine not only what particular persons by name should have relief, but also the exact amount which should be paid to each one of them. We concur in this view. . . . Although the act speaks of the sums as being the amount of taxes assessed upon and collected from the said named persons contrary to the provisions of the regulations, there is no indication of any intention to submit to any one the determination of the question whether the taxes in any case were collected contrary to the provisions of such regulations, or of the question how those provisions are to be construed. On the contrary, the clear import of the statute is that Congress itself determines that the amounts named were collected contrary to the provisions of the regulations."
"where the government has a special defense to a claim, and the facts constituting the defense are well known to Congress, it is unreasonable to suppose that Congress would refer the claim to this Court with the intent that the special defense should be set up and the claim defeated thereby."
Russian-American Company is spoken of as "the owner of said building." The only uncertainty or contingency appears in the language of the enacting clause, wherein it is provided that, "if the court shall find that said parties acquired a valid title to said building alleged to have been purchased by them, the court shall award," etc. It was further contended on behalf of the complainants that the action of the international commissioners in distinguishing between public property which should pass to the United States and private property which should not be disturbed is to be regarded as an act of a diplomatic and political character, and which it was not competent for Congress to refer to the Court of Claims for review or reexamination. To sustain the proposition that the decisions of international commissions, rendered within the scope of their authority, are final and conclusive, a number of authorities are cited in the brief for the appellants, among others, the leading case of Comegys v. Vasse, 1 Pet. 193. That case arose out of the treaty whereby Spain ceded Florida to the United States, and wherein commissioners were invested with power and authority to receive, examine, and decide upon the amount and validity of asserted claims upon Spain for damages and injuries. This Court held, per Story, J., that the decision of the commissioners within the scope of their authority was final and conclusive; that the parties must abide by it as the decree of a competent tribunal of exclusive jurisdiction. The Court held likewise that though the finding of the amount and right to receive was final, yet the jurisdiction of the commissioners did not extend to determining any disputes that might arise as to the subsequent ownership of such claims.
"The validity and amount of the claim being once ascertained by their award, the fund might well be permitted to pass into the hands of any claimant, and his own rights, as well as those of all others who asserted a title to the fund, be left to the ordinary course of judicial proceedings in the established courts, where redress could be administered according to the nature and extent of the rights or equities of all the parties."
present, it is argued that the finding of the commissioners of Russia and the United States was final as to the status of the properties passed upon by them as public or private, that being the purpose for which they were appointed; that it was competent for Congress to refer the dispute that subsequently arose between the United States and the claimants to the Court of Claims; but that the court, in passing upon the case, could not go back of the action of the commissioners and retry the question under what category, public or private, the property in question was to be regarded.
the court from finding otherwise. But I think that, reading the statute in the light of all the facts in the case, it is highly improbable that Congress intended to supersede the action of the international commission and to submit the treaty to the court for its construction, and I think that the language of the preamble is entitled to be considered, in connection with the other facts of the case, to enable us to give a fair and reasonable construction to this remedial statute.
The conclusion, then, in my judgment, is that Congress intended that the Court of Claims should inquire whether these claimants had validly derived their title from the Russian-American Company, and if so, what was a fair rent for the use of the building, and what a suitable indemnity for the building itself.
But in the second place, if I am wrong in this view and if the Court of Claims had a right to go back of the language of the statute and of the action of the international commissioners, I think the court erred in their interpretation of the treaty.
"in the cession of territory and dominion made by the preceding article are included the right of property in all public lots and squares, vacant lands, and all public buildings, fortifications, barracks, and other edifices which are not private individual property."
"the cession of territory and dominion herein made is hereby declared to be free and unencumbered by any reservations, privileges, franchises, grants, or possessions by any associated companies, whether corporate or incorporate, Russian or any other, or by any parties except merely private individual property holders."
of the Russian-American Company which had exercised a despotic control over these dominions, and the evident purpose of the sixth article, as is plain from the communication of Secretary Seward to the Russian minister, was to prevent any territorial or political or corporate privileges from being subsequently asserted. It was clearly not intended to include or affect private property as such.
If this were a controversy between private parties in a court where only municipal law is administered, like a court of common pleas, it may be that the narrow view put on this treaty by the court below might properly prevail; but when we consider that we are dealing with an international instrument conferring territorial dominion from one sovereign to another, a broader and more liberal construction should be put on the language used. Haguenstein v. Lynham, 100 U. S. 483; Head Money Cases, 112 U. S. 580. Viewed in this light, I think that the treaty meant to distinguish public property of the various kinds enumerated from property held by individual persons or by companies composed of individuals for private uses and purposes. Such was the view taken by the commissioners, and, as I think, by Congress, and their interpretation ought to be respected and adopted by the courts.
Even when corporations are dissolved by writs of scire facias or decrees in equity at the suit of the sovereign, their moneys and property not essential to the exercise of their franchises are not forfeited, but are left to the ownership of the stockholders. In construing the treaty as a mere municipal regulation and as an act of forfeiture, I think the court below grievously erred.
Upon the whole, I am of opinion that the judgment of the court below was erroneous, and should be reversed, and that the record should be remanded with directions to proceed, under the provisions of the Act of January 17, 1887, to examine whether the claimants have lawfully derived title from the Russian-American Company, and, if so, to award them a fair rent for the use and suitable indemnity for the loss of the building owned by them.


Clinton D. COX, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
Before: LEVAL, POOLER, and CHIN, Circuit Judges. Clinton D. Cox, Bruceton Mills, WV, pro se, for Petitioner–Appellant. Alina P. Reynolds, Assistant U.S. Attorney, Bridgeport, CT (Sandra S. Glover, Assistant U.S. Attorney, New Haven, CT, of counsel), for Respondent–Appellee.
Petitioner–Appellant Clinton D. Cox, a federal prisoner acting pro se, moves for Certificates of Appealability (“COAs”) in support of his appeal from the denial by the United States District Court for the District of Connecticut (Thompson, J.) of his petition under 28 U.S.C. § 2255 for a writ of habeas corpus overturning his conviction on federal narcotics charges. The first question we face is whether this court has appellate jurisdiction, which turns on whether Cox's appeal is taken from a “final decision[ ] of the district court[ ].” 28 U.S.C. § 1291. If that question is answered in the affirmative, his entitlement to a COA turns on whether he has made a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Cox was convicted in 2001 on federal narcotics and firearms charges and was sentenced at first to 540 months' imprisonment, to be followed by a 10–year term of supervised release. On direct appeal, Cox's conviction and sentence were affirmed. See United States v. Cox, 324 F.3d 77 (2d Cir.2003); United States v. Cox, 59 F. App'x 437 (2d Cir.2003). In 2004, he moved for a new trial, arguing that the Government knowingly allowed witnesses to testify falsely at trial to his transactions in guns of a type that had not yet been manufactured. The district court denied the motion in 2006, finding that Cox's evidence was altered and his claims had no basis in fact.
Later in 2004, Cox filed a first motion under § 2255 to set aside the convictions, on grounds not relevant to the present appeal, which the district court denied. He later moved to set aside his firearms convictions. The district court granted this motion and vacated the firearms convictions.1 The court then resentenced Cox on the narcotics convictions, imposing four concurrent 360–month prison terms. Cox appealed, and this court affirmed. United States v. Cox, 458 F. App'x 79 (2d Cir.2012).
In October 2011, Cox filed the present § 2255 motion, seeking to overturn the narcotics convictions.2 He supported the motion by numerous allegations, including claims of ineffective assistance of counsel in the course of trial. He later amended the motion, adding claims of ineffective assistance by counsel who represented him on appeal and by counsel who served him at his resentencing. The asserted ineffectiveness of counsel lay in their failure to detect and protest the prosecution's failure to disclose exculpatory evidence. While the motion was pending, Cox filed motions for bail and for discovery of alleged exculpatory material.
In September 2013, the district court denied this § 2255 motion. The court explained in part that Cox's claims were time-barred because they “relate[d] only to the original sentencing,” as well as procedurally barred because the claims were raised for the first time on collateral review, and Cox had not demonstrated cause and actual prejudice or actual innocence to excuse his failure to raise them previously. Cox timely noticed this appeal.
Cox's motion for a COA relates to (1) various claims of prosecutorial misconduct, false testimony, and ineffective assistance of counsel at his trial; and (2) claims that the lawyers who represented him on his appeal and at his resentencing were ineffective for failure to challenge alleged false testimony and government misconduct.
The first question is whether our court has jurisdiction over Cox's appeal, which turns on whether Cox appeals from a “final” judgment within the meaning of 28 U.S.C. § 1291 (“The courts of appeals ․ shall have jurisdiction of appeals from all final decisions of the district courts․”).3 A final order is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978) (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)).
It appears clear on the face of the court's ruling that it “end[ed] the litigation [of his § 2255 proceeding,] leav[ing] nothing for the court to do but execute the judgment.” Id. The order stated, “the Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 ․ is hereby DENIED.” Cox v. United States, No. 3:11–cv–1568–AWT, Dkt. 37 at 13 (D.Conn. Sept. 24, 2013). This dismissed Cox's petition in its entirety, leaving nothing to be adjudicated in the district court.
On the other hand, the reasoning on which the court relied was erroneous as to some of Cox's claims. The court explained that, because “the claims [Cox] raises ․ relate only to the original sentencing,” they were therefore time barred. Id. at 8. The court further reasoned that Cox was procedurally barred from raising his arguments for the first time on collateral review. This ruling was incorrect in two respects. First, as the petition raised claims of ineffective assistance of counsel on Cox's appeal and his resentencing, his claims did not “relate only to the original sentencing.” Second, the claims of ineffective assistance of counsel at his resentencing were not procedurally barred. A petitioner is not obliged to raise a claim of ineffective assistance of counsel while represented by the very attorney alleged to have rendered ineffective assistance. See Billy–Eko v. United States, 8 F.3d 111, 114 (2d Cir.1993), abrogated on other grounds by Massaro v. United States, 538 U.S. 500, 509 (2003). And claims that counsel in the trial court was ineffective are not forfeited for failure to raise them for the first time on appeal. Massaro, 538 U.S. at 509. As such claims almost invariably depend on fact finding, which cannot be performed by appellate courts, they are more appropriately reserved for collateral approach. Id. at 504–06. Thus, at least the claims accusing his resentencing counsel of ineffective assistance were not waived. Accordingly, while the court clearly intended to dismiss the petition in its entirety, the reasons the court gave for the ruling were not valid as explanations for the dismissal of some of the claims.
Nonetheless, as the order clearly stated that the petition was dismissed in its entirety, and the court clearly intended exactly that result, we conclude it was a “final” order and that we therefore have jurisdiction over the appeal. The issue, however, calls for some discussion of the distinction between this case and United States ex rel. Polansky v. Pfizer, Inc., 762 F.3d 160 (2d Cir.2014).
In Polansky, this court found that a district court order of dismissal was not final (and was therefore not appealable) in circumstances where it was unclear “how much of the complaint the district court intended to dismiss.” Id. at 161. The circumstances were unusual: the plaintiff had filed a civil suit against his employer alleging that (1) the employer had defrauded the federal and state governments; and (2) the defendant had retaliated against the plaintiff for reporting alleged violations of law. Id. On the defendant's motion to dismiss, the district court dismissed the fraud claims but explicitly denied the motion to dismiss the retaliation claims. Id. at 162. The court granted the plaintiff leave to amend the fraud claims, which the plaintiff did. Id. The defendant again moved to dismiss the fraud claims. Id. The case was then transferred to a new judge. The court wrote an opinion addressing only the fraud claims, and granted the motion to dismiss. The court then directed the clerk to “enter judgment in favor of defendant, dismissing the complaint.” Id. We concluded “it remained unclear whether [the district court] intended to dismiss [the retaliation claims], whether it overlooked those claims, or whether it intended to only dismiss the fraud claims.” Id. (emphasis added).
Our opinion found it “most plausible” that the district court intended to dismiss only the fraud claims. Id. at 163. The apparently broader order was akin to a ministerial error. Because we construed the order as not dismissing the plaintiff's suit in its entirety, we concluded it was not a final order under 28 U.S.C. § 1291. Id. at 164.
Polansky might conceivably be read as supporting the proposition that, when a district court's order by its terms dismisses a suit in its entirety, but the court's reasoning supports the dismissal of only some of the claims, the judgment is not a final order for the purposes of § 1291. Were that the rule, the district court's order of dismissal in this case would not have been a final order and we would have no jurisdiction of this appeal. However, we do not think Polansky bears such an expansive reading.The Polansky opinion depended on the appellate court's conclusion that the district court had not intended to issue a final judgment dismissing the action in its entirety. The conclusion was based on the irreconcilable inconsistency between the court's explicit refusal to dismiss the retaliation claims and its dismissal of the case in its entirety.
In the present case, by contrast, there can be no doubt that the district court fully intended to deny Cox's petition, leaving nothing further to adjudicate in the district court. Though the district court may have been mistaken in believing that the reasons it gave would justify dismissal of all of Cox's claims, nothing in the record suggests that the district court did not intend its order as a final decision terminating the case in its entirety. There is no inconsistency between our ruling that the district court's order in this case was a final decision and Polansky's conclusion that the order in that case was not.
A rule that a district court's order, which by its terms dismisses a case in its entirety, is nonetheless not deemed a “final decision” that allows for appeal if the reasons given for dismissal are erroneous or would not justify dismissing all of the claims, would have harmful consequences for our system of justice. First, it would often be difficult for the losing party to know whether an apparently final order is in fact appealable. Second, a party that has suffered an adverse final judgment is subject to strict time limitations for filing an appeal. See Fed. R.App. P. 4(a)(1). Those time limits would be effectively erased if an order of dismissal were considered not “final” by virtue of its erroneous or incomplete reasoning. An arguably erroneous judgment could be appealed at any time, even years later, because the apparent order of dismissal would not have qualified as an appealable final order. Not only would the time for appeal not have expired-it would not even have begun to run. We do not believe the Polanksy opinion established such a rule.
We conclude that the district court's order of dismissal was an appealable final decision. Our court therefore has jurisdiction over Cox's appeals and his motions for COAs.
This court may issue a COA “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U .S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller–El v. Cockrell, 537 U .S. 322, 327 (2003) (internal citations omitted). In reviewing a district court's denial of relief under § 2255, we review findings of fact for clear error and conclusions of law de novo. Campusano v. United States, 442 F.3d 770, 773 (2d Cir.2006).
Cox fails to show entitlement to COAs for his numerous claims, as to some because he fails to make a substantial showing of denial of a constitutional right, and as to others because his claims are procedurally barred. Cox's first claim is that his trial counsel was ineffective for failure to investigate evidence that weapons, which a witness testified Cox had traded for drugs, were not manufactured until after the events in question. The district court convincingly found that there was no such evidence. Next, Cox argues that the prosecution ought to have disclosed exculpatory evidence that a witness was the target of a grand jury investigation and that the witness perjured himself at trial. The district court reasonably found that there was no evidence that the witness was under investigation at the time of trial or that he perjured himself. Cox's claims of ineffectiveness of appellate and resentencing counsel fail because their validity depends on the validity of Cox's contentions regarding the time of manufacture of the guns, which the district court properly rejected as baseless.
As for Cox's claim that the prosecution should have identified individuals who purchased firearms from one of the witnesses at trial and produced interview notes regarding those individuals, it is procedurally barred. Cox was aware of the requested material at least since trial. Indeed, the alleged exculpatory evidence appears to have been the basis of Cox's motion for new trial in 2004. Since that time, Cox has appealed his conviction twice, and does not appear to have raised this argument. See United States v. Cox, 324 F.3d 77 (2d Cir.2003); United States v. Cox, 59 F. App'x 437 (2d Cir.2003); United States v. Cox, 458 F. App'x 79 (2012). “Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent.” Bousley v. United States, 523 U.S. 614, 622 (1998) (citations and internal quotations omitted). Since Cox has demonstrated none of these elements, his claim is barred.
Thus, in spite of the district court's error in holding that certain of Cox's claims were time barred and procedurally defective, Cox nonetheless fails to make the requisite substantial showing of the denial of a constitutional right. Cox's discovery and bail motions also rely on the plainly inadequate factual basis for his § 2255 motion, and are therefore similarly denied.
For the foregoing reasons, Cox's motions (Dkt. No. 110 in Case No. 13–3745; Dkt. No. 51 in Case No. 13–4473; and Dkt. No. 37 in Case No. 13–4699) are hereby DENIED.
1. Under authority of an intervening decision of the Supreme Court, Watson v. United States, 552 U.S. 74 (2007), the district court determined that Cox's conduct, which served as the basis for the firearms convictions, did not constitute a violation of the firearms statute.
2. Because Cox was resentenced after he filed his first § 2255 motion, his second motion is not deemed to be a “second or successive motion” subject to the exacting requirements of § 2255(h). See Vu v. United States, 648 F.3d 111, 113 (2d Cir.2011).
3. The requirement of a final order has exceptions, not relevant here.