Appeal of Kirbell

• Decision Date: 05 December 1902
• Citation: 75 Conn. 301,53 A. 587
• Court: Connecticut Supreme Court
• Parties: Appeal of KIRBELL et al.

53 A. 587

75 Conn. 301

Appeal of KIRBELL et al.

Supreme Court of Errors of Connecticut.

Dec. 5, 1902.

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

Proceedings by William T. Pitkin and others for the probate of the will of Henry Kennedy, deceased. From an order and decree of the superior court, admitting the will to probate, rendered on appeal from the court of probate, contestants, Howard P. Kirbell and others, appeal. No error.

Lewis E. Stanton and Sidney E. Clarke, for appellants.

Charles E. Perkins, William Waldo Hyde, and Arthur F. Eggleston, for appellees.

HALL, J. The testator, Henry Kennedy, died March 15, 1890, leaving a large estate. His will, dated December 29, 1898, which was admitted to have been duly executed, and by which he left the principal part of his property to his adopted daughter, Nellie W. Pitkin, wife of William T. Pitkin, one of the executors of said will, was admitted to probate March 23, 1899. At that time the appellants, who are said to be grandnephews of the testator, were minors. The appellees are the two executors of said will. The reasons of appeal filed in the superior court allege that the will of December 29, 1898, was not the last will of the testator, but that on or about the 24th of February, 1899, he executed another will, revoking all former wills, and that said last will has been lost or destroyed. A proper understanding of the claims made by the appellants in their appeal to this court requires a statement of certain facts which they endeavored to prove upon the trial in support of their above reasons of appeal, of some of the evidence offered to establish those facts, and of the facts which were found by the trial judge. The appellants claimed to have proved in the trial court that on the 24th of February, 1899, in his office in the Ballerstein Building, in Hartford, said Henry Kennedy executed another will, revoking all former wills, and by which will most of the estate of said Kennedy was left to other persons than said adopted daughter, Mrs. Pitkin, and that said will was duly witnessed by three witnesses,— a colored man, Barnett Johnson; one Mitchell A. Hunter, a milkman; and Frank E. Conran, a plumber. Neither the original nor a copy of said alleged will was produced at the trial. It was claimed to have been shown that this will, on the day it was executed, was placed by said Kennedy in a drawer of a desk in his said office, and that it remained there until the 13th of the following March, on which day, during the last sickness of said Kennedy, it was claimed that said Barnett Johnson saw William T. Pitkin stealthily enter said office, heard him lock the door on the inside, open said desk and open a window, heard the rustling of papers, and saw smoke coming over the top of the door; and it was claimed to have been thus shown that said Pitkin at that time fraudulently destroyed said will. It was also claimed by the appellants to have been proved that a pencil memorandum made by said Kennedy of the sums and property given by said will, and of the names of the persons to whom the same were given, was used by said Kennedy in drawing said will, and that this memorandum, on the day the will was executed, was taken by said Barnett Johnson, who, it was claimed, remained that day in Kennedy's office from about 8 o'clock in the morning until about 4 o'clock in the afternoon, and while Kennedy was writing his will, and that said memorandum was kept by said Johnson until the 27th of the following March, on which day it was lost or taken from his pocket at an interview with one of the appellees' attorneys at said attorney's office. Said Johnson testified to a large number of bequests said to have been contained in the alleged will of February 24th, among which was one of $5,000 to his children, and one of $1,700 to the child of said Conran. Both Johnson and Conran testified that the will of February 24th was witnessed by themselves and by said Hunter. Said Johnson was the appellants' principal witness as to the drawing, execution, and subsequent destruction of the alleged will of February 24th, and as to the existence and subsequent loss of the alleged memorandum. He was directly contradicted by Hunter, who testified that he himself did not witness the alleged will, and was not present at the execution of such a will; by Mr. Pitkin as to the circumstances indicating that said will was destroyed; by the attorney of the appellees as to the loss or taking of said memorandum at his office on the 27th of March; and by several other witnesses upon material matters testified to by said witness Johnson. Some of the appellants' witnesses testified that before the trial the...