In re Estate of Clogston

Watson, C. J. The proponents, in their opening case, called as a witness one A. C. Theriault, the attorney who drew the proposed will. His direct examination was confined entirely to what occurred in connection with, and at the time of, the execution of the will, his acquaintance with the testator, the frequency of his meeting and observing him in the street, and his participation in the transaction when the testator deeded his real estate to the proponent Glennie. He was not inquired of and did not testify respecting anything that occurred subsequent to the execution of the will, except as to meeting and observing the testator in the street, nor respecting the proceedings in regard to the appointment of a guardian over the testator, but did testify that in his opinion, based on his testimony, the testator, at the time the will was executed, was of sound mind. The — 49 — hearing in such proceedings was on October 15, 1915, about a month after the execution of the will. During the trial up to this time, no testimony had been received or offered with respect to those proceedings. Subject to exception on the ground of its being an improper way to introduce evidence of the guardianship, the witness in cross-examination was permitted to testify that about a month after the time when the will was executed the testator appeared in probate court and a guardian was appointed over him. The exceptions state that this question was preliminary to an inquiry concerning the speech and conversation of the testator on that occasion. However this may have been, the force of the exception is not easily seen in view of the fact that later the proponents introduced documentary evidence showing such appointment was made at that time. Being further cross-examined, this witness was asked why he did not witness the will. Subject to exception on the ground of immateriality, he answered that he did not know of ever drawing a will where he witnessed it himself. He was then asked if it was not a fact that he did not witness the will in question because he wanted to reserve himself as a witness to testify to all the transactions surrounding it. Subject to exception on the ground of vagueness of the question, the witness answered that he never had any thoughts of it; that at the time of drawing the will he did not contemplate any trouble about it. The import of the question was plain enough, and consequently the exception saved has no force. It appeared that proponent Glennie had two unmarried sons and a daughter who lived with her at the Clogston house where she was taking care of the testator, both before and after the execution of the will; that they were material witnesses to show the relations existing between the testator and this proponent; that they, as a part of the family, had in a measure cared for the testator; that the sons had shaved him, and the three had assisted him in many ways, and had associated with him in a social and family way during the time. The sons were not present at the trial, and for the purpose of explaining their absence a witness was asked concerning their whereabouts, and answered: “In France. Q. In France, they belong to the army, what is that? Ans. Yes.” Whereupon the court ruled, subject to exception, that the fact that they belonged to the army be stricken out. We may assume this to have been an erroneous ruling, — 50 — and yet it is not believable that the proponents were harmed by it for the fact that the boys were in France remained in evidence. It appeared that, after the contestant Elwin Clogston was appointed guardian of the testator, he employed proponent Glennie to remain at the testator’s house and take care of him, which she did until his decease. Mrs. Glennie and her daughter testified that Elwin, after his appointment as such guardian, choked the testator so that his throat was injured; that the skin on his neck was discolored, and ever afterwards in eating and swallowing he had difficulty with his throat. In cross-examination Mrs. Glennie was asked, subject to exception as not in proper cross-examination, why she did not go to the probate judge about the choking, and ask that Elwin be removed as guardian and some suitable person be appointed in his place. She answered, “Because I did not think it would do any good.” The witness had not testified in direct examination as to why she did not go to the probate court with the matter. It might fairly be argued that if her testimony touching such choking be true the most natural thing for her to have done, was to make complaint to the probate court, to the end that the guardian be removed and a new one appointed who would treat the testator kindly and gently as his age and physical condition required, and that her failure to make such complaint tended to discredit her testimony as to what took place. “Declarations or acts or omissions to speak or to act when it would have been natural to do so if the fact were as testified to, may be shown by way of contradiction or impeachment of the testimony of a witness, when they fairly tend to control or qualify his testimony.” Foster v. Worthing, 146 Mass. 607, 16 N. E. 572. And the witness, being a party to the suit, could be cross-examined by the adverse party on any subject to the controversy whether she had testified in chief on the same subject or not. Swerdferger v. Hopkins, 67 Vt. 136, 31 Atl. 153. The contestant called as a witness one Fannie B. Whit-comb who testified, among other things, that she never saw Ehvin misuse his father, or abuse him. This evidence was admitted subject to the exception of being a characterization and conclusion. The contestant claimed that the proposed will was an unnatural one; that giving part of his property to proponent Glennie, as was attempted by the will, was contrary to the course — 51 — dictated by natural affection, had the testator in mind the natural objects of his bounty. In support of this claim the contestant introduced evidence tending to show that great family affection existed between him and his father. On the other hand, the evidence of the proponents tended to show the contrary to be true; that the father thought Blwin was trying to get control of his property, and that Blwin was unkind to and used personal violence toward his father; that both of the latter’s sons had.neglected to care for him properly; that proponent Glennie and her family gave the testator care and comfort. The proponents claimed that in these circumstances the will was a natural and beneficial disposition by the testator of his estate, having in mind his own comfort and welfare. The contestant and his brother were men of mature years, having homes of their own at places distant from the testator’s home. The testator’s household for some months before the making of the will and until his death comprised himself, the proponent Glennie, and her sons and daughters. Whether the will was an unnatural disposition of the testator’s property was for the jury to say on the evidence showing the circumstances prior to, and at the time of, its execution, including the attention and treatment given him by his sons and the effect the same had, or was calculated to have, on his mind and feelings toward them, also including the relations existing between the testator and Mrs. Glennie, and the effect the care and treatment given him by her had, or was calculated to have, on his mind and feelings toward her. Foster’s Exrs. v. Dickerson, 64 Vt. 233, 24 Atl. 253; In re Barney’s Will, 71 Vt. 217, 44 Atl. 75. However the jury might view the will in this respect, in the circumstances it had a bearing on the issues of mental capacity and undue influence. Denny v. Pinney’s Heirs, 60 Vt. 524, 12 Atl. 108. It was therefore important for the contestant to show that he did not illtreat his father, if such be the fact. The competency of the witness was not challenged and, nothing appearing of record to the contrary, it is assumed, in support of the ruling, that she stated, so far as was practicable, the facts and circumstances on which her opinion or conclusion was based. We think the question here presented is governed, not by the general rule, but by the exception thereto stated by Judge Peck in Bates v. Sharon, 45 Vt. 474, and reiterated in State v. Marsh, 70 Vt. 288, 40 Atl. 836, as being well stated: “Where the facts — 52 — are of such a character as to be incapable of being presented with their proper force to any one but the observer himself, so as to enable the triers to draw a correct or intelligent conclusion from them without the aid of the judgment or opinion of the witness who had the benefit of personal observation, he is allowed, to a certain extent, to add his conclusion, judgment, or opinion.” Substantially the same legal question was ruled in the Marsh case. There it was held not error to permit a witness to state, when asked what he observed in respect to the conduct of the respondents toward each other on a certain occasion, that he “observed they-were very intimate.” And in Mckee v. Nelson, 4 Cow. 355, 15 Am. Dec. 384, a .breach of promise case, where a ruling was upheld permitting certain witnesses living in the same house and constantly associating with the plaintiff as a member of the family, and from an attentive observance of the whole deportment during the courtship, to state their opinion that the plaintiff was sincerely attached to the defendant. The contestant called as a witness one Mr. Chamberlin who, it appeared, had visited the testator at his home both before and after proponent Glennie went there to live. The witness testified that he did not make such visits as much after she went there as before, and that there was a reason why. Being asked to state the reason, he answered, subject to exception on the ground that there was no evidence as to who locked the doors, and as having no bearing on the testator’s mind, that sometimes he would find the door locked and no one would open it. There was evidence that Mrs. Glennie had charge of the house at this time, was running it, and that the testator was not in condition to answer calls at the door. Though seemingly not of much force, we cannot say the evidence did not have some bearing on the question of undue influence. Probate Judge Martin, a witness called by the contestant, testified in direct examination with respect to what took place in the probate court at the time of the hearing on the petition for the appointment of a guardian. He stated that the testator was asked where Edward Deavitt’s office was. “Q. And what was his reply? Ans. Well he was unable to tell where it was.” This answer being objected to as not the reply, the witness said: ‘ ‘ I cannot tell you the exact words. ’ ’ The answer being further objected to as but a conclusion, the court told the witness to state it in substance. The answer then given was ordered stricken — 53 — out; and the witness was asked to state the substance of what the testator said when he was asked where Deavitt’s office was. He answered: “Well, sir, I can’t — I wouldn’t — I don’t know that I can put it into — where he located it — I don’t suppose; I couldn’t tell you now where he located it.” In answer to am other question, the witness stated that the testator did not locate Deavitt’s office correctly. Except as here stated, the witness did not at any time testify to what he heard the testator say on that occasion in respect to Deavitt’s office. Further testifying concerning the same occasion, the witness was asked whether the testator or his counsel made any objection td the appointment of a guardian. Objection being made, counsel for contestant stated, “I do not offer to show what they said. I offer to show that they did not say anything”; further stating they claimed that it was an act on the part of the testator which was admissible the same as all evidence of his acts where he realizes his condition; and that it confirmed the testimony of the contestant that the testator stated that he wanted a guardian appointed, when they had the talk in the garden some two or three weeks before. Subject to exception on the ground that there was nothing in that act which was inconsistent with full testamentary capacity of the testator, the witness answered, in effect, that during the hearing the testator made some very loud talk, but could not say whether it was by way of objection or not; that after the evidence was all in he was very calm and made no objection. The adjudication of the probate court on the petition, and the appointment of a guardian were matters proper for record, and could be proved only by the record. Holden v. Scanlin, 30 Vt. 177. Such proof was made in this case, and the certified copy is before us as a part of the exceptions. Therefrom it appears that Elwin J. Clogston, the contestant, was the petitioner; and the entry of judgment is (following the date of hearing), “After hearing all the evidence produced on behalf of the petitioner and of the petitionee, it is considered and .adjudged,” etc. This is conclusive that evidence was introduced on behalf of each party to the proceedings; and the only reasonable construction is that the evidence introduced by the petitionee was in opposition to the appointment of a guardian. Such opposition by the testator being shown by the record, how can the fact offered to be shown by parol (that he did not say anything) be inconsistent with his having full testamentary capacity? Not — 54 — only this, but on what principle can the observance by him of proper decorum in the probate court while his case was there on trial, be taken as an admission of any thing other than the supremacy of the law and the power of the court having jurisdiction of such procedings? The evidence offered was inadmissible for the purposes named, and should have been excluded. In redirect examination this same witness was asked: “Now, from what you heard him (testator) say there (referring to saíne occasion) with reference to Edward Deavitt’s office, and this loud talk that you have testified to, basing your answer on that, what do you say as to whether he was of sound or unsound mind, basing your answer upon what you have testified here?” Subject to exception on the ground that the question was not proper, the witness answered, “I should say he was of unsound mind. ’ ’ The last part of the question does not broaden the basis of the answer elicited. “What you have testified here,” relates back to what is specified as the basis of the answer in the early part of the question, namely, what the witness heard the testator say on the occasion mentioned, with reference to Deavitt’s office, and his loud talk. But the witness stated more than once that he could not tell what he heard the testator say with reference to Deavitt’s office, nor the substance of it. Thus this non-expert witness was permitted to express his opinion, based in part on something not testified to by him in court, and thereby harmful error was committed. Londonderry v. Fryor, 84 Vt. 294, 79 Atl. 46; In re Bean’s Will, 85 Vt. 453, 82 Atl. 734. It is to be noticed that the answer was to be based in this respect on what the witness heard the testator say, not on the manner of his saying it, nor on his appearance or actions in connection therewith, observed and stated by the witness. The case is therefore unlike that of Cram v. Cram, 33 Vt. 15; Foster’s Exrs. v. Dickerson, cited above; In re Smith’s Will, 88 Vt. 259, 92 Atl. 223. Contestant’s brother Burt, as his witness, had testified to a statement made by the testator to the witness subsequent to the execution of the will and the appointment of the guardian, to the effect that he, testator, just as lief shoot Elwin as shoot a dog. Thereupon, against proponents’ objection and exception as immaterial, the witness was permitted to testify that he informed contestant of this statement. But we think this evidence was in — 55 — the proponents’ favor. Its tendency was to show that, to the contestant’s knowledge, he was not looked upon favorably by his father, and so it affected the credit to be given to contestant’s testimony that there was great family affection between them. The exception is not sustained. The evidence of the proponents tended to show that the testator had stated many times, both before and after the will was made, that he had given his two sons a large farm with stock. The contestant offered evidence tending to show that his father deeded to bim and his brother' the farm as the father had stated, but that they worked without wages about nine years helping the father carry on the farm, and that, if they had been allowed proper wages, -their wages would have equalled the value of the farm. The son Burt testified in cross-examination that when his father bought that farm, the witness was seventeen years old. He was then asked if his father was not entitled to four years of the nine years they were running the farm? Objection being made, this question was excluded and exception saved. Without evidence to this effect being introduced by the proponents, the jury might reason that the testimony on the part of the contestant, that if they (sons) had been allowed “proper wages,” conveys the idea, inferentially, that their time was their own (as it might be by gift or purchase from the father), and that “proper wages” means such compensation as they were, in the circumstances, entitled to receive for the services rendered under hire. The manifest purpose of the inquiry was to refute such an inference, and the exclusion of the question was prejudicial error. See Comstock’s Admr. v. Jacobs, 84 Vt. 277, 78 Atl. 1017, Ann. Cas. 1913A, 679. Patrick Connolly, a policeman, called as a witness by contestant, testified in direct examination that there was a time when proponent Glennie’s daughter came and wanted an officer to go to the testator’s house. The witness was'then asked, ‘‘ What did she say ? ” The question being answered responsively, the proponents moved to strike out the answer, and excepted to the overruling of the motion. This exception was not well taken. Ford v. Hersey, 92 Vt. 405, 104 Atl. 875. The proponents made two requests to charge respecting the effect, as evidence, of the subsequent adjudication by the probate court that the testator “is insane and mentally incapable of taking care of his property and of himself”, and appointing a — 56 — guardian over him. An exception was taken to the court’s failure to charge as thus requested, and also to the charge as given on that subject. The exceptions to the noneompliance with the requests are waived, not being briefed. Charging upon the subject, the court said, among other things, “that adjudication being made after this will was executed, is not prima facie evidence that Mr. Clogston was.mentally incapable of making a will at the time this will was signed.” To this extent, at least, there can be no doubt of the soundness of the charge as given, and since a part of the charge covered by the exception is without fault, the exception is not sustainable. Usher v. Severance, 86 Vt. 523, 86 Atl. 741; State v. Shaw, 89 Vt. 121, 94 Atl. 434, L. R. A. 1915F, 1087. The court was requested to instruct the jury further that it was proper for them to take into consideration that the comfort of the weak, the dependent, and the aged, depends largely on their testamentary capacity being maintained, and that if they cannot leave property to persons kind to them, they may often be left to suffer from want of kindness, and excepted to the noncompliance therewith. Yery likely this might properly have been urged in an argument to the jury by counsel, but there was no occasion for its being made prominent by the court. The court very pointedly impressed upon the minds of the jurors that they were to determine the mental condition of the testator at the time when the instrument in question was signed, and in so doing they had a right to consider all the evidence before them as to the testator’s condition both before and after that day, for the reason that capacity to make a will, at the time of making the one in question, “may be inferred from the soundness or unsoundness of mind found to exist within a reasonable time before and after the time in question. ’ ’ The transcript of the evidence is not before us, and whether the substance of all the evidence bearing on this question is shown by the exceptions does not appear. Therefore error in this part of the charge does not appear. Mr. Greenleaf says: “ In the proof of insanity, though the evidence must relate to the time of the act in question, yet evidence of insanity immediately before or after the time is admissible.” 2 Greenl. Ev. Sec. 690. To the same effect, is the holding in Crocker v. Chase, 57 Vt. 413. Exception was taken to the court’s telling the jury that the matter of Mrs. Glennie’s services subsequent to the making of — 57 — the will is not to be considered. It is enough to say of this exception that we find no statement in the charge to which it reasonably points. In the course of its charge the court told the jury that, as had been said to them by contestant’s counsel in the argument of the ease, this is not a collection suit; to which an exception was noted. This statement by the court, not germane to the ease, was well calculated to prejudice the minds of the jurors against the proponents’ case in view of the services shown to have been' rendered by Mrs. G-lennie for the testator before the will was made and afterwards, which had a strong bearing on the naturalness of the will. On exception being taken thereto, the court, evidently realizing the prejudice the objectionable statement might have created, directed the jury to disregard the expression. We do not consider whether, notwithstanding this last direction, the prejudice was likely to remain; for the case being remanded on other grounds, this particular error is not likely to recur on another trial. Judgment reversed, and cause remanded.