Appeal of Vivian

• Decision Date: 20 December 1901
• Citation: 50 A. 797,74 Conn. 257
• Court: Connecticut Supreme Court
• Parties: Appeal of VIVIAN et al.

50 A. 797

74 Conn. 257

Appeal of VIVIAN et al.

Supreme Court of Errors of Connecticut.

Dec. 20, 1901.

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

In the matter of probate of the will of John L. Vivian deceased. From a judgment sustaining the will, James H. Vivian and others appeal. Affirmed.

The reasons of appeal were that the paper was not duly executed as a will, and also the use of undue influence by the wife of the alleged testator, who was the sole legatee.

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

Frank T. Brown and Donald G. Perkins, for appellees.

BALDWIN, J. There was written on the paper propounded as the will of John L. Vivian the following affidavit:

"I, Allen Tenny, one of the attesting witnesses to the within and foregoing will of John L. Vivian, on oath say that I attested the said will and subscribed the same in the presence of the testator, and in the presence of the other two subscribing witnesses to said will; that the other two witnesses thereto subscribed and attested said will in my presence, in the presence of each other, and in the presence of said testator; and that said testator, at the time of execution of said will, was of sound mind and memory, and signed and published said will in my presence, and in the presence of the other two subscribing witnesses thereto. Allen Tenny.

"Subscribed and sworn to before me this 24th day of October, 1887. Lucius Brown, Notary Public."

By Gen. St. § 545, if any of the attesting witnesses to a will makes and signs such an affidavit, "the oath of any such witness so taken shall be accepted by the court of probate as if it had been taken before said court" The superior court, on an appeal from the probate of a will, sits in the place of a court of probate, and can receive any evidence on matters covered by the reasons of appeal which was or would have been relevant and competent on the original hearing. Webster v. Merriam, 9 Conn. 225, 231; Davis' Appeal, 39 Conn. 395, 401; Mathews' Appeal, 72 Conn. 555, 45 Atl. 170. The affidavit was therefore properly admitted. It is true that its reception let in a kind of evidence which the common law excluded from the consideration of a jury. But the right of trial by jury is not violated by reasonable modifications of procedure for the better promotion of justice and public convenience. Curtis v. Gill, 34 Conn. 49, 54; State v. Cunningham, 25 Conn. 195, 203. To make an affidavit of the kind in question competent evidence as to the execution of a will is a modification of that nature. Whether the proponents could have rested their proof of the due execution of the. will on this affidavit alone, as respects the witness who subscribed it it is unnecessary to decide, for they did not do this. Allen Tenny, the affiant, was produced as a witness in the superior court, and testified that the testator signed the will (which was dated at Norwich in 1887, the trial taking place in 1901) in presence of three witnesses, one of whom subscribed the name of A. L. Drummond; that he had no recollection whatever as to who this Drummond was, whence he came, or where he now was; and that his testimony that such a person was present and did so sign was formed, not on his remembering the man, but on what appeared from the document itself. Another witness testified that he had looked through the city directories of Norwich from 1883 to 1901, and found no such name as A. L. Drummond, and made diligent inquiries for such a person, but could find no trace of him. The court having found, upon this evidence, that due and unsuccessful search for said Drummond had been made, properly admitted the paper propounded as the will, without requiring the production of Drummond as a witness or further proof that such a person ever existed. This ruling is amply supported by the lapse of 14 years since the date of the paper, taken in connection with the testimony above stated.

Evidence was properly excluded of declarations of the testator as to how he came to make the will; that it was made under constraint proceeding from his wife, and that in certain other matters he had acted under her domination. They were mere hearsay. Declarations evincing kind feeling or hostile feeling on the part of the testator towards persons named as legatees are admissible, on an issue as to testamentary capacity or undue influence, as tending to show the probability or improbability that a will containing such dispositions expressed his real wishes, and was his real act Dennlson's Appeal, 29 Conn. 399, 402. But those excluded in the case at bar were of a different kind. The reasons of appeal do not raise the question of general testamentary incapacity, and any evidence from the appellants to show that would therefore have been inadmissible. St Leger's Appeal, 34 Conn. 434, 448, 91 Am. Dec. 735; ...