36 A. 847 (Conn. 1896), Appeal of Kimberly

Citation:36 A. 847, 68 Conn. 428
Opinion Judge:FENN, J.
Party Name:APPEAL OF KIMBERLY ET UX.
Attorney:William C. Case and William H. Ely, for appellants. Samuel Fessenden and Henry Stoddard, for appellees.
Case Date:December 22, 1896
Court:Supreme Court of Connecticut
 
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Page 847

36 A. 847 (Conn. 1896)

68 Conn. 428

APPEAL OF KIMBERLY ET UX.

Supreme Court of Errors of Connecticut.

December 22, 1896

Appeal from superior court, New Haven county; Prentice, Judge.

The probate court for the district of New Haven approved an instrument as the last will of Frederick H. Hoadley. Augustus H. Kimberly and wife, contestants, appealed to the superior court, where there was also verdict and judgment sustaining the will, and contestants again appeal. Affirmed.

William C. Case and William H. Ely, for appellants.

Samuel Fessenden and Henry Stoddard, for appellees.

FENN, J.

This is an appeal to the superior court from an order and decree of the court of probate for the district of New Haven, approving an instrument purporting to be the last will and testament of Frederick H. Hoadley, of said New Haven. The case was tried to a jury, and the will was sustained.

The only claim made upon the trial by the appellants related to the testamentary capacity of the testator, and was that he was of unsound mind on November 2, 1893, the time said instrument was executed. The five reasons assigned in the appeal to this court present three questions. The first relates to rulings upon evidence; the second, to portions of the charge to the jury; and the third presents, or was intended to present, objections to the charge taken as a whole. We will consider these matters in the above order.

Upon the trial the contestants claimed and offered evidence to prove that the deceased, who at the time of his death, February 25, 1895, was a bachelor about 49 years of age, a graduate of Yale, and by profession a physician, was a man endowed by nature with more than ordinary mental powers, which he had improved by education and travel; that at some time about 1878 or 1879 he began to make use of morphine or other kindred drug; that, as the result of such use, he, in the course of time, so undermined his physical and mental powers that, long before said will was made, he became of

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unsound mind, and so continued to his death; that his mental impairment was indicated in part and characterized by insane delusions which he entertained concerning his sister, Mrs. Kimberly, the contestant, who was the only surviving member of his immediate family, and for whom he had previously had a strong affection, and respecting her conduct towards and treatment of him and others; that these delusions controlled his relations to his sister during his later years, and led him without cause to harbor towards her feelings of hostility and dislike, so that he was wholly alienated from her, and to make the will he did, ignoring her. The proponents, on the other hand, claimed and offered evidence to prove that the testator, although upon occasions a user of morphine, was never a morphine habitué, and that he never did, as the result of its use, permanently impair, to any noticeable degree at least, either his physical health or mental powers; that he remained through life possessed of a strong, vigorous, and well-balanced mind; that he harbored no delusions touching his sister; and that the long estrangement between them (which was conceded) was not the consequence of insane imaginings or insane delusions, but of causes which were real, substantial, and sufficient.

The contestants, as a part of their case, and as tending to establish their said claim, offered evidence to show that the testator during the latter years of his life was careless and even slovenly in his dress and personal appearance, whereas he had formerly been scrupulously neat and particular; that his countenance was unnaturally pallid, his eyes glassy, his speech hesitating and incoherent, the muscles of face and hands nervous and twitching; and that he had a tendency to drowsiness, and even to fall asleep, in conversation. All these things the proponents denied, and offered evidence to disprove. Among their witnesses for this purpose were Samuel T. Dutton, Mrs. Lena Neilson, Theodore S. Palmer, Mrs. Emily Sands, Mrs. J. K. Thacher, and Mrs. C. H. Merriam. These witnesses, in answer to questions by appellees' counsel, testified to their acquaintance with the testator. the duration of such acquaintance, the occasions upon which they had met him, the opportunities which they had had of observing him, his appearance, conduct, and conversation upon such occasions, and to the facts within their knowledge which formed the foundation of the opinions afterwards expressed by them, and then, in further response to inquiries from counsel for the appellees, and without objection, testified that, in their opinion, the testator was of sound mind. Questions were thereupon asked of these witnesses by counsel for the appellees, and against the objection of the appellants that the questions were immaterial and irrelevant, as follows: Of Samuel T. Dutton: " State whether or not during this period you observed any indication of mental weakness." Of Mrs. Lena Neilson: " Will you state whether you ever observed in his appearance or manner or conduct anything which indicated mental unsoundness?" Of Theodore S. Palmer: " Was there anything in his looks, talk, conversation, address, or anything about him that indicated any aberration of intellect in any way?" Of Mrs. Emily Sands: " Did you ever at any...

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