Appeal of Carpenter

• Citation: 51 A. 126,74 Conn. 431
• Court: Supreme Court of Connecticut
• Decision Date: 29 January 1902
• Parties: Appeal of CARPENTER.

51 A. 126

74 Conn. 431

Appeal of CARPENTER.

Supreme Court of Errors of Connecticut.

Jan. 29, 1902.

Appeal from superior court New London county; John M. Thayer, Judge.

Proceeding to probate the will of Lucy M. Wait, deceased. From a judgment of the superior court affirming the decree of the probate court admitting the will to probate, Orra P. Carpenter, the contestant, appeals. Affirmed.

Upon the trial, the issues being as to due execution, mental capacity, and the exercise of undue influence by one Walker, one of the three principal legatees under the will, said Walker was called as a witness by the appellant who was the sole heir at law, and not named in the will, and testified that about an hour before the death of the testatrix, Lucy M. Wait, he called Dr. Tingley by telephone to attend her, and had a talk with the doctor over the telephone. Dr. Tingley was then called to the stand by the appellant, and testified as to his visit, what he found, and the testatrix's death. Thereupon appellant's counsel, for the purpose of showing the relations existing between Walker and the testatrix and the confidential nature of his relations and agency to her asked the witness the following question: "Please state, doctor, what Albert A. Walker said to you when he called you on the telephone to come to the testator." Upon objection the question was excluded. The appellant also called one Bowen to testify as to the use of alcoholic liquors by the testatrix, and he testified that he never knew her to use such liquors. Counsel for the appellant thereupon asked this question of the witness: "Have you, Mr. Bowen, stated regarding her [the testatrix] that she drank whisky and brandy to an extent that nobody could stand it?" The question was objected to by counsel for the appellee. Counsel for the appellant thereupon stated to the court that he was surprised by the testimony that the witness had given; that it was contrary to what the witness had stated preparing for the trial, and contrary to what the appellant had reason to believe he would testify. The counsel stated that he desired to pursue the question to show that the witness had made a different statement, but not thereby to prove the fact of the use of intoxicating liquors by the testatrix. The evidence was excluded. The appellant called one Sarah Bosworth to testify to her knowledge of the use of alcoholic liquors by the testatrix. In reply to a question by the appellant's counsel this witness testified that she did not know of the use by the testatrix of alcoholic liquors. Later in the trial the witness was recalled by counsel for the appellant, and the following ensued: "Mr. Shields: Your honor, I called this witness yesterday with reference to the use of alcoholic liquors by Lucy 51. Wait, and I called her upon information that came to me directly from reliable sources of statements that she had made that she knew Lucy Wait drank intoxicating liquors: and, further, your honor, since the witness left this stand she has said in the court room that she has picked this woman (Lucy Wait) out of the gutter drunk, but she was not going to tell it in court Q. Now, Mrs. Bosworth have you stated that Lucy Wait, to your knowledge, had used and drank whisky? A. No, sir." Upon objection counsel was permitted to put leading questions, and to inquire as to her knowledge upon the subject of the testatrix's use of liquors and instances of apparent intoxication. Having received unsatisfactory replies, he asked if she knew Warren Keith. The witness having replied in the affirmative, he asked, "Have you stated to him that you had picked her up out of the gutter drunk, but you were not going to tell it in court?" To these questions objection was sustained, and the questions excluded. The appellant afterwards called Warren P. Keith, and, having asked some preliminary questions, put to him the following question: "Since Sarah Bosworth was on the witness stand here yesterday, has she made to you a statement that she picked Lucy M. Wait up out of the gutter drunk, but was not going to tell it in court?" This question, as stated by counsel, was asked for the purpose of showing by the evidence of this witness their surprise at the testimony of Mrs. Bosworth, and a different statement by said Bosworth from her testimony, but not to prove the fact that Lucy M. Wait used intoxicating liquors. Upon objection the question was excluded. Exceptions were taken to all the above rulings, which are made the only reasons of appeal.

William H. Shields and Charles F. Thayer, for appellant.

Donald G. Perkins, for appellee.

PRENTICE, J. (after stating the facts). The question to Dr. Tingley was properly rejected. It was too general and indefinite, and not directed to any pertinent matter. It called for any conversation upon whatever subject. The question was not only too general, but it was not accompanied by any suggestion to the court as to the character of the testimony expected to be elicited in reply. The court, having been kept in the dark by both the question and the silence of counsel, cannot be held to have erred, even though some reply can be imagined which might have been relevant. Furthermore, any statement of Walker's could only have been admissible as an admission against interest. Walker was one of three who, under the will, received the bulk of the estate. His was not the only interest which the evidence, if admitted, might have affected adversely. The question was therefore properly excluded, upon the principles enunciated in Appeal of Dale, 57 Conn. 140, 17 Atl. 757, and Appeal of Livingston, (33 Conn. 76, 26 Atl. 470.

Concerning the inquiry put to Bowen, it is to be noted that counsel were not asking for the mere privilege of propounding leading questions. Had such a request been preferred, the court would have doubtless granted it, as the record discloses was done in the case of the witness Mrs. Bosworth. The desire of counsel was to examine, or rather in form to...