Weldon Hotel Co. v. Seymour

The opinion of the court was delivered by Taft, J. Yarious questions are made in this case, as to the admissibility of evidence. ' The motion of Elizabeth Seymour to suppress the testimony of certain witnesses is not insisted upon by her solicitors in argument, and as the question was not passed upon by the chancellor, it cannot be heard in this court. Van Namee v. Groot, 40 Vt. 74. The parties filed in the Court of Chancery, a stipulation that the stenographer’s minutes of the testimony of witnesses given upon a trial in the County Court in a case in favor of Seymour, Exr. v. the orators might be used as evi [584] dence, each party reserving the right' to object to the same, or any portion thereof, for immateriality, irrelevancy or other matter of substance. Objection is now made to the testimony of Martin A. Seymour, one of said witnesses, he having deceased since the trial, upon the ground that it should appear that the testimony offered was given in an action between the same parties, and involving the same issues as the present case ; and to that of Elizabeth Seymour, because she is rendered incompetent by statute. We think the stipulation of the parties was a waiver of the objections, and the questions as to the incompetency of the testimony of Martin as given upon the former trial, and the incompetency of Elizabeth under the statute, cannot now be raised. In Motley v. Head, 43 Vt. 633, it was held that where a deposition was admitted “ subject to objection for substance,” that after the testimony was closed, the competency of the witness could not be objected to. We see no reason why a different rule should be adopted in the present case. The admission of the testimony of Elizabeth and Charles S. Seymour, taken at St. Albans, is not insisted upon ; and the remaining questions as to the evidence would not affect the finding of the court upon the question of fact involved, and therefore are not decided. The question of fact is, as to the validity of a gift from Laura Seymour, the testate of the defendant, Henry E. Seymour, to the defendant, Elizabeth. Laura died in 1870, and for some weeks prior to her death was in feeble health, being in her eighty-first year. She held a promissory note signed by the orators, and a few days before her death gave it to Elizabeth, endorsing it in blank. After her death, Henry, the executor of the will of Laura, claimed the note upon the ground that the gift to Elizabeth was invalid, and the orators have brought a bill of interpleader, to compel the defendants to settle the controversy as to the ownership of the. note. The court find that the gift was a valid one ; that it was completed by an endorsement and delivery of the note ; that the donor had sufficient mental capacity at the time to make such a gift; and that the note is therefore the property of Elizabeth. The decree of the Court of Chancery is affirmed, and cause remanded.