Bishop v. Copp

• Decision Date: 04 August 1921
• Citation: 114 A. 682,96 Conn. 571
• Court: Connecticut Supreme Court
• Parties: BISHOP v. COPP.

114 A. 682

96 Conn. 571

BISHOP v. COPP.

Supreme Court of Errors of Connecticut.

August 4, 1921

Appeal from Superior Court, New London County; Isaac Wolfe, Judge.

In the matter of the estate of Mary E. Benham, deceased. From a decree of the probate court admitting will of Mary E. Benham to probate, and appointing Belton A. Copp executor, Martha T Bishop appealed to the superior court, and from a judgment sustaining the judgment below, she appeals. Error, and new trial ordered.

Hadlai A. Hull and Charles Hadlai Hull, both of New London, for appellant.

Warren B. Burrows, of New London, and Frank S. Bergin, of New Haven for appellee.

WHEELER, C.J.

The appeal from the judgment of the court of probate admitting to probate a certain instrument as the last will of Ellen Benham raised three questions: (1) Whether the instrument was executed by Ellen Benham as required by law; (2) whether at the time of execution of this instrument she had the testamentary capacity to make a will; (3) whether the will was procured by the fraud, duress, and undue influence of the beneficiaries and of B. A. Copp, the executor.

The appellant, in entire disregard of our settled practice, filed a " motion to set aside the verdict and grant a new trial," and also a " motion in arrest of judgment and to grant a new trial," both based upon claimed erroneous rulings on evidence. She also filed an appeal for errors in these rulings. That method of review of rulings on evidence is the only one known to our procedure. The rulings complained of are for the exclusion of questions asked upon cross-examination and direct examination.

We fully approve of the trial court restricting the examination of witnesses to evidence which is competent, material, and relevant; and when the examination has been carried as far as will serve to develop the issues involved and aid the search for the truth we approve of the trial court curtailing the length and the limit of examinations. To do this so as not to unduly restrict the examination and at the same time not permit it to be stretched to unseemly limits requires the exercise of the wisest discretion and the highest judgment of the trial court. As we read this record we are impressed with the feeling that the trial court has exercised its discretion in excluding the direct and cross examination of appellant's witnesses to such an extent as to have unduly restricted her in the presentation of her evidence. The test of cross-examination is the highest and most indispensable test known to the law for the discovery of truth.

Professor Wigmore summarizes our own conviction and experience when he says:

" For two centuries past, the policy of the Anglo-American system of evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law. The belief that no safeguard for testing the value of human statements is comparable to that furnished by cross-examination, and the conviction that no statement (unless by special exception) should be used as testimony until it has been probed and sublimited by that test, has found increasing strength in lengthening experience." Wigmore on Ev. vol. 1, § 1367.

The issue of testamentary capacity and that of undue influence necessarily cover a wide range. And both direct and cross-examination, to be effective, must be permitted considerable latitude. Upon the issue of testamentary capacity Schouler says:

" The whole history of the testator, mental and physical, may be freely ranged over upon the issue of his insanity." Schouler on Wills and Administration, § 192.

" When the question is one of sanity or testamentary capacity at a given time, upon the presumption that the mind does not ordinarily pass suddently and sharply from sanity or capacity into the opposite condition, nor from the latter into sanity or capacity, but gradually and imperceptibly as day into night, the law permits the evidence to cover long spaces of time in either direction. Of course it weakens as time lengthens and in either direction at last ceases to be of any force." Dale's Appeal, 57 Conn. 143, 17 A. 763.

The appellee, in the introductory part of his case, was able to produce but a single witness to the will, the other two witnesses having died some years previously. Thereupon, at the suggestion of the court, he produced the defendant executor, the magistrate who administered the oath to the witnesses at the time of the execution of the will, and he testified that he had been the conservator of Ellen Benham, the testatrix, and drew her will on the day of its date, and then he stated that the testatrix signed the instrument, and the witnesses also, and in her presence. He was then inquired of,

" Q. Do you recollect what Miss Benham said about the bequest of Miss Hassam" (referring to a bequest in Ellen Benham's will)?

This was objected to and excluded by the court as not proper cross-examination. No exception was taken to this ruling. He was then inquired of:

" Q. Did she make any statement to you with reference to the bequest of Dr. Fisher?"

The court sustained the objection to this question. The cross-examination continued.

" Q. Where did you get the description of the organization or person to whom the bequest or residuum was given?"

The court sustained the objection to this question.

" Q. You say you drew the will? A. I did.

Q. What do you mean by that? A. Why, when Miss Benham told me how she wished her will drawn, and I wrote it. ***

Q. With relation to the execution of the will, when did you get it; how long before? A. I could not say. ***

Q. Do you remember how you got it?"

The court sustained the objection.

It is obvious that the court excluded these inquiries because it deemed them not to be proper cross-examination. The trial court failed to give due consideration to the fact that the witness testified on the direct examination that he drew the will. It was relevant cross-examination to test his statement by inquiring as to the instructions given him as to drawing the will. The witness was thereafter inquired of on cross-examination:

" Q. You recollect whether you made any comment at the time?"

This question was objected to and excluded. All that occurred between the testatrix and the witness who drew the will was admissible cross-examination, made so by the witness having testified that he drew the will in accordance with the wishes of Miss Benham as expressed to him. The same witness had testified on his direct examination that he was the conservator of Ellen Benham at the time he drew her will. He was inquired of on cross-examination:

" Q. When were you made conservator?"

This question was objected to and excluded. No one ought to know better than the holder of a public office when he was appointed. It is true this could be proven by the public record, but that was not the exclusive method of making this proof. The witness was thereafter inquired of on cross-examination:

" Q. While you were conservator over her did you pay her bills?"

The court sustained the objection to this question, and appellant excepted. The ruling was correct. It was not cross-examination. The appellee opened the door to inquiry of what occurred at the making of the will, but not as to the range of relations between the witness and the testatrix.

Four rulings excluding testimony in chief offered by appellant were, we think, erroneous. Martha T. Bishop, the appellant, was the sister of the testatrix. She testified in her own behalf as to the way in which Ellen and her mother lived, and that it had been necessary in 1895 to commit the testatrix to the Hospital for the Insane at Middletown because of her violence and of the inability of the household to restrain her. She...