Hobbes Appeal From Probate

Hameksley, J. The trial judge instructed the jury fully and correctly as to what constitutes that undue influence which renders a will invalid, and the manner in which such influence may be established by proof. He called their attention to the application of these principles to the circumstances of the case on trial. He stated clearly the broad contentions of the parties, and then pointed out fairly and with sufficient detail the evidential facts claimed by each to have been established by the testimony. He did not attempt to repeat the- testimony in detail; but cautioned the jury to consider all the claims made by counsel as they were made by them, whether included in his summary or not, and to weigh all the evidence as it was produced before them, in connection with those claims, and to determine the question of free agency or external control. He then referred to the written requests to charge filed by the parties, and complied with all the requests of the appellants, and with some made by the appellees. In compliance with the request of the appellants *467 he charged: “Pressure of whatever character, whether acting on the fears or hopes—if so exerted as to overpower volition without convincing the judgment—is a species of constraint under which no will can be made. Importunity or threats, such as the testatrix has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort—these, if carried to a degree in which the free play of the testatrix’s judgment, discretion, or wish, is overborne, will constitute undue influence, though no force was either used or threatened. The existence and exercise of such undue influence is not often susceptible of direct proof. It is shown by all the facts and circumstances surrounding the testatrix, the family relations, the will, her condition of mind, and of body as affecting her mind, her condition of health, her dependence upon and subjection to the control of the person influencing, and the opportunity of such person to wield such an influence. Such an undue influence may be inferred as a fact from all the facts and circumstances aforesaid, and others of like nature that are in evidence in the case, even if there be no direct and positive proof of the existence and exercise of such an influence.” In compliance with the request of the appellees he charged that “ the fact that one of the legatees, prior to the making of the will in question, was angry because the testatrix had made a former will without remembering her, and had remained away from her two days on account of this feeling, ought not to be a sufficient reason, alone, to justify the jury in finding that said will was executed by the testatrix on account of the undue influence of this sister exercised in that manner.” It is this last passage that the appellants chiefly urge as erroneous. The statement of the court is true. Such an exhibition of temper might or might not influence the testatrix in favor of her sister. If the other evidential facts tending, in connection with this, to prove a combination between the persons surrounding the testatrix, and that by working on her fears or otherwise they influenced her weakened mind and so *468 forced her to reverse a long-cherished purpose, and to execute a will which did not express her real wishes (to all which facts the court had previously directed the attention of the jury), were in truth supported by credible testimony which satisfied the jury of their existence, then the conduct of the sister might well be regarded as a controlling factor in reaching that result. On the other hand, if the fact of Mrs. Cook’s anger stood alone; if there were no other testimony tending to show any external pressure upon the will of the testatrix, or, if there were other testimony and the jury gave it no credit, then the mere fact of the sister’s conduct did not furnish sufficient reason to justify the jury in finding undue influence, and the court might well warn the jury against drawing an improper inference from this admitted fact. But the appellants contend that although the statement of the judge may have been true, he should have accompanied it by the qualifying statement that the sister’s conduct was admissible as tending to prove undue influence, and, in connection with the other facts the appellants claimed to have proved, might furnish conclusive evidence. The failure to do this was not error. The arrangement of his charge is largely within the discretion of the judge. He had already so instructed the jury that they could not fail to understand the importance of this evidence in connection with the other facts the appellants claimed to have proved; the danger was the jury might give this admitted fact too much importance, in case the other facts claimed had not been fairly established. In telling the jury that that fact alone would not necessarily establish undue influence, the court unavoidably reminded the jury of its evident importance in connection with the other facts to which he had just called their attention. The appellants refer as an authority for their claim to a passage in the opinion in Richmond's Appeal, 59 Conn. 226, 245, quoted also in Charter v. Lane, 62 id. 121, 125. That passage, while not inappropriate in reference to the precise state of facts presented in that case, cannot be treated as establishing a rule of law. “ The failure to caution the jury in respect to the weight of evidence is error per se in the case *469 of the admission of the testimony of an accomplice; but ordinarily the propriety of comment on testimony depends on the circumstances of each case. It is not true that a failure to comment on the weight of evidence of a weakened mind, etc., in connection with a statement that such facts, if proved, do not necessarily establish testamentary incapacity, must always be treated as error. The circumstances of a case may be such that a total failure to comment may seem to be equivalent to a withdrawal of the evidence and so mislead the jury to the injury of a party, as we thought in Richmond's Appeal; but the circumstances may be such that a slight reference to such testimony is not equivalent to its withdrawal, but is simply a proper exercise of the discretion of the judge in intimating his opinion as to the weight of evidence, as in the case at bar. ” Turner's Appeal, 72 Conn. 305, 321. In the present case the alleged failure to comment on the testimony cannot be treated as equivalent to a withdrawal of any evidence from the jury. The appellants criticise the language of the charge as practically withholding from the jury the right to weigh this evidential fact at all, or as instructing them, as a rule of law that the fact could not support a verdict for the appellants, although the jury should find that it did in fact exert an undue influence and that the will in question was the direct result of pressure thus brought to bear on the mind of the testatrix. We do not think this criticism is just. The evident intention of the judge, which the jury would naturally not fail to apprehend, especially in view of the full instructions previously given, was to caution the jury that the fact of Mrs. Cook’s conduct, admitted to be true so far as detailed in this passage of the charge, ought not to be accepted by them as, standing by itself, sufficient proof of undue influence. This the judge might properly do. In compliance with the request of the appellees the judge also charged: “ If the relations of the parties were such that a portion of the legatees were the nearest and most direct object of the testatrix’s bounty, both in point of blood and affection, the fact that they were present during the making of the *470 will, without further proof of undue influence, ought not to justify the jury in finding such influence as a fact.” The error claimed in respect to this passage of the charge is similar to the alleged error already considered, and for similar reasons is not well taken. The view we have expressed as to the two passages in the charge specially objected to, removes any possible ground for the appellants’ claim that the charge' as a whole was misleading and erroneous. No instructions asked by the appellants were refused, and the instructions given were correct in law, adapted to the issue, and sufficient for the guidance of the jury in the case before them. Hartford v. Champion, 58 Conn. 268, 276. There is no error in the judgment of the Superior Court. In this opinion the other judges concurred.