Appeal of Gilman

• Decision Date: 26 July 1932
• Court: Connecticut Supreme Court
• Parties: Appeal of GILMAN.

161 A. 845

115 Conn. 724

Appeal of GILMAN.

Supreme Court of Errors of Connecticut.

July 26, 1932

Appeal from Superior Court, Fairfield County; Ernest A. Inglis Judge.

In the matter of the estate of Frazier Gilman, deceased. An appeal was taken from a decree of the court of probate for the district of Norwalk, approving and admitting to probate the will of said decedent, to the superior court, and the case was tried to the jury. Verdict and judgment confirming the decree, and Preston N. Gilman appeals.

No error.

C Milton Fessenden, of Stamford, for appellant.

William F. Tammany, of South Norwalk, and L Goldschmidt, of Norwalk, for appellee.

PER CURIAM.

This is an appeal from the judgment of the superior court affirming a decree of the court of probate of the district of Norwalk admitting to probate the will of Frazier Gilman. The ground of opposition to the will was that the testator lacked mental capacity to make it. The only errors assigned on the appeal to this court are three rulings on evidence. One was the admission in rebuttal of the opinions of medical experts as to the testator's mental capacity. It is the long-established practice in this state for the proponents of a will to call one or more of the subscribing witnesses, have them testify as to its execution and the mental capacity of the testator, then rest upon the prima facie case so established and upon rebuttal produce such further evidence of mental capacity as they desire. Dale's Appeal, 57 Conn. 127, 132, 17 A. 757; Livingston's Appeal, 63 Conn 68, 74, 26 A. 470; Vincent v. Mutual Reserve Fund Life Asso., 77 Conn. 281, 287, 58 A. 963. We see no occasion to depart from this rule of practice at this late day. One of these expert witnesses was asked a rather long hypothetical question ending with the query whether in his opinion the testator had sufficient mental capacity to know the business in which he was engaged, the natural objects of his bounty and the estate of which he was possessed. The appellant objected because of the inclusion in the query of the reference to the natural objects of the testator's bounty, stating that the question included nothing as to the history of the family, the family itself, or the terms of the will. In his brief the appellant makes a broader objection, but we must determine the correctness of the ruling of the trial court upon the basis of the objection made at the trial. The question...