Appeal of Richmond

Decision Date15 April 1890
Citation59 Conn. 226,22 A. 82
PartiesAppeal of RICHMOND et al.
CourtConnecticut Supreme Court

Appeal from superior court, Windham county; Prentice, Judge.

Proceedings for the probate of the will of Eunice R. Heap. From a judgment admitting to probate, John L. Richmond and others appeal.

C. H. Briscoe and J. P. Andrews, for appellants.

C. E. Searls and G. A. Conant, for appellees.

FENN, J. On the trial of this appeal to the jury, the appellees, having offered the will and codicil, and having introduced the witnesses thereto upon the question of their execution and the capacity of the testatrix, rested. The appellants then presented evidence claimed as tending to establish the want of such capacity, and undue influence exercised by one Cushman, the residuary legatee, to which the appellees replied with counter-evidence. Concerning the relations which existed between the testatrix and Cushman, the finding is as follows: The testimony of the parties was in substantial agreement in establishing the following facts: In or about 1878, Mr. Heap, husband of the testatrix, died. Mrs. Heap was then left alone without near relatives in Willimantic. She was, and for many years had been, the owner of property, a part of which consisted of real estate in Willimantic, and on a part of which she resided. Mr. Cushman had been a friend of Mr. Heap during his last years, and soon after the latter's death became managing agent of Mrs. Heap's property. A power of attorney was executed by her to him for the purpose, and all her property then passed into his management. From this time until Mrs. Heap's death he remained her confidential friend and business adviser, and continued in the management of her property, she placing great trust in and reliance upon him. During the later years of Mrs. Heap's life Cushman became an inmate of her house, and there remained, caring for her and her property, until her decease. She died June 4, 1887, aged 85 years, leaving as her nearest kin 28 nephews and nieces, among whom are the appellants. In reference to the circumstances attending the execution of the will and codicil, the finding states that the evidence was practically confined to the testimony of the attorney who drafted them, which it states as follows: "A few days prior to the execution of the will, Cushman, whose employment was in Hartford, and whom he well knew, came to him, and requested him to go to Willimantic and draft a will for an old lady there; naming the testatrix. During the conversation Cushman stated that she had spoken of her desire to make her will, and had told him in general what she purposed to do, and asked him who a suitable man to draft it would be. Cushman knew the witness, and had upon several occasions employed or consulted him. The witness testified that he presumed that he had been Cushman's usual attorney. Cushman told the witness that he had suggested him as a proper man to draft the will, and that Mrs. Heap had requested him (Cushman) to obtain the witness for that purpose. Cushman told the witness that Mrs. Heap had said that she proposed to remember certain of her relations, and to make him a handsome legacy. During the conversation, something was said about the amount of her estate, and witness understood Cushman to reply to ar inquiry from him that it was about $12,000; but the witness was unwilling to say that the expression was not used of the amount of personal estate in Cushman's hands, although the witness did not at the time so understand it. Upon a day set, the witness went to Willimantic, and was introduced to Mrs. Heap by Cushman. Cushman immediately left the witness and Mrs. Heap alone together. They discussed at length and alone the provisions of her will; Mrs. Heap giving him data as to her wishes, and explaining at length her reasons for much of her action. The witness took memoranda as she stated what she desired. He then drafted the document, and read it carefully over to her. She expressed her satisfaction. Thus tar no one had been present. At this point Cushman was summoned, and asked to procure two witnesses. He went out and obtained them, and soon returned with them. The document was thereupon executed; Cushman being present. The witness stated that the instrument was Mrs. Heap's will, but did not at any time state anything as to its provisions. Neither Cushman nor any other person was informed of the contents of the will until after its execution and the witness' departure. Memoranda for the codicil, together with the will, were brought to the witness in Hartford by Cushman for him to draft the codicil, which he did; returniug it and the will to Cushman. The witnesses to thecodicil testified that it was executed in Cushman's presence, and that they were requested by him to act as witnesses. The witness charged his services on book to Mrs. Heap. Payment of the bill was afterwards made by Cushman." The estate inventoried $27,689.62, of which $12,000 was real, and the balance personal, estate. By the provisions of the will the sum of $200 is given to each of 25 nephews and nieces. To one of these nephews the additional sum of $100 a year is given during the life, and conditioned on the support, of his father, the brother of the testatrix, who died shortly after. A gold watch is also bequeathed to one Kate Clark, and the will then concludes as follows: "All the rest of my property of every kind I give absolutely to my friend E. McCall Cushman, of Hartford, Conn. I do this as only a just reward for his faithful care of all my affairs formally years; for his constant friendship to me personally; and for my great esteem for him, and confidence that he will make the wisest and best use of the property given him. "In the will it is provided that, if any of the nephews and nieces named as legatees shall have died leaving children, such' children are to take the legacy. By the codicil this provision, and the bequest of the watch, are revoked. The will is dated October 1, 1885, and the codicil March 16, 1886.

The appellant's first witness was John L. Richmond, who, having testified as to Cushman's management of Mrs. Heap's affairs, and the power of attorney therefor having been laid in, was asked upon direct examination: "Do you know the value of her property in 1878 or 1880?" Upon objection being made, the counsel for the appellants claimed it to show what property Cushman had control of, adding: "The object of this inquiry is to show all the relations that existed between this man and this woman from the time he came there and took hold of the property; whether she was a woman of large or small means." To a question by the court, the witness said he knew nothing of the matter except from a conversation with Mrs. Heap. The court ruled that at this stage, and until further reason for its relevancy appeared, he should exclude the question. During the trial the appellants offered in evidence three assessment lists made out and sworn to by Mr. Cushman, as the agent of Mrs. Heap, of her taxable property for the years 1883, 1885, and 1886. This testimony was excluded. The appellants further offered to lay in the inventory and distribution of the Lord estate, as tending to show what the amount of property was that came to Mrs. Heap in 1866, either directly or indirectly. On objection, it was stated that it was proposed to follow it up with proof that she had the same property in 1879, and it was claimed as tending to show the amount of her property to have been $30,000 or upwards. The court declined to receive the evidence, but stated that, if counsel had evidence as to her property at later dates, he would consider and rule upon the question when such evidence should be offered. We cannot well understand why all the evidence so presented should not have been received. It was incumbent upon the...

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