Appeal of Look

• Decision Date: 03 November 1930
• Citation: 152 A. 84
• Parties: Appeal of LOOK.
• Court: Maine Supreme Court

152 A. 84

Appeal of LOOK.

Supreme Judicial Court of Maine.

Nov. 3, 1930.

Exceptions from Superior Court, Lincoln County.

Appeal by Minnie R. Look from decree of judge of probate, allowing probate of the will of Isabella R. Nickerson, deceased. Decree was affirmed, and appellant brings exceptions and moves to have verdict set aside.

Exceptions and motion overruled.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, FARRINGTON, and THAXTER, JJ.

Locke, Perkins & Williamson, of Augusta, for appellant.

Weston M. Hilton, of Damarlscotta, for proponents.

DUNN, J.

Isabella R. Nickerson, a resident of Boothby Harbor, in Lincoln county, died there November 25, 1929, aged 88 years. An instrument, bearing date August 24, 1929, was probated by the probate court for that county as and for her last will.

In the Supreme Court of probate, the issues were lack of mental capacity; undue influence; and insufficient attestation because one of the three subscribing witnesses was not disinterested. This witness was, by judicial appointment, guardian of Harry Carlisle Smith, an orphan to whom the will devises real estate.

The court submitted to the jury whether Mrs. Nickerson, when she made the instrument purporting to be her will, was of sound mind; also, whether she had been unduly influenced to make that instrument. "Yes," was the answer of the jury in reference to testamentary ability; "No," with regard to undue influence.

The decree appealed from was affirmed, the will re-probated, and the cause remitted to the probate court.

The appellant saved an exception.

Exceptions noted in the course of the trial will have consideration first.

A witness for the appellant who, six months before the death of Mrs. Nickerson, had nursed her for five days, was asked on direct examination, "Did she have any trouble with any portions of her body about being able to handle herself?"

The witness replied, "She acted very much as though she had had one or two shocks, she was suffering from paralysis."

On objection that the answer was irresponsive, it was struck from the case. An exception was taken. The witness was directed by the court to answer the question responsively. The witness then said: "She was unable to walk without one or two canes at most times. She had no control of her mouth when eating."

There is no merit in this exception.

A person whom the will names as a beneficiary was called by the appellant as a witness. The witness identified a letter written by her under date of April 21, 1929. The attorney purposed to read the letter aloud, in the presence and hearing of the jury, "as a basis for examination and explanation" of the witness. Objection was sustained.

The court said that the letter could be used to refresh the recollection of the witness. On reading the letter to herself, the witness was asked, "Having refreshed your recollection, will you kindly tell the court and jury, Mrs. Carlisle, what Mrs. Nickerson's condition was at the time you wrote this letter?"

The witness answered: "Well, a written statement is very different from one spoken, and it was just this. I said her condition was pitiful. So it was for one who had been really a brilliant business woman, and of course she was too old to do anything of that sort, and was failing physically all the time. That is what I meant by that paragraph."

The appellant takes nothing by this exception.

The attorney for the appellant, it was in evidence, one day before the making of the will, declined, through a messenger, to make Mrs. Nickerson's will. He Inquired of Harry Carlisle Smith, the messenger, "What did I say to you?"

The question was objected. Objection was rightly sustained.

Cyrus R. Tupper, Esq., who subscribed the will as an attesting witness, was the aforementioned guardian. The devise to the ward, the appellant contends, invested the guardian with such interest under the will as to disqualify him from witnessing the instrument.

"Three credible attesting witnesses, not beneficially interested under said will," must subscribe it. Rev. St. c. 79, § 1. "Credible" is used in the sense of "competent." Warren v. Baxter, 48 Me. 193.

Obviously, the statute intends to exclude those whom the will benefits from attesting as subscribing witnesses.

Direct, certain, vested, and pecuniary interest, at the time of attestation, is a "beneficial interest." Warren v. Baxter, supra; In re Marston, 79 Me. 25, 8 A. 87. An indirect, uncertain, and contingent interest, of present appreciable pecuniary value, may be a "beneficial interest." In re Trinitarian Congregational Church, 91 Me. 416, 40 A. 325; Appeal of Coy, 126 Me. 256, 137 A. 771, 53 A. L. R. 208.

But not every interest disqualifies.

A person whom a will nominated as executor was held a competent witness. Jones v. Larrabee, 47 Me. 479. Witnesses, constituted by the will trustees for their children, had no beneficial interest in the will. Key v. Weathersbee, 43 S. C. 414, 21 S. E. 324, 49 Am. St. Rep. 846. See, too, on the point that trusteeship is not disqualifying, Montgomery v. Perkins, 2 Mete. (Ky.) 448, 74 Am. Dec. 419.

The relationship between guardian and ward, even when quasi parental, is that of trustee and cestui que trust. But the trust does not give the guardian legal title to the estate of his ward; title remains in the ward. The right of guardians in the property intrusted to them is not coupled with an interest. 28 C. J. 1128; Hutchins v. Dresser, 26 Me. 76; Sanford v. Phillips, 68 Me. 431; Dorr v. Davis, 76 Me. 301; Pennington v. Gartley, 109 Me. 270, 83 A. 701.

No appreciable pecuniary gain resulted to Mr. Tupper under the will; his interest was not a beneficial interest.

The verdict below was advisory only; it was for the court to decide ...