Boschen v. Second Nat. Bank Of New Haven

• Decision Date: 19 January 1944
• Citation: 35 A.2d 849,130 Conn. 501
• Court: Connecticut Supreme Court
• Parties: BOSCHEN et al. v. SECOND NAT. BANK OF NEW HAVEN et al.

130 Conn. 501

35 A.2d 849

BOSCHEN et al.

v.SECOND NAT. BANK OF NEW HAVEN et al.

Supreme Court of Errors of Connecticut.

Jan. 19, 1944.

Appeal from Superior Court, New Haven County; Wynne, Judge.

Action by Florence Boschen and others against the Second National Bank of New Haven, executor of the will of Alma C. Streitlein, deceased, to set aside the will of deceased on ground of testamentary incapacity. A decree of the probate court approving the will was taken to the Superior Court and tried before a jury. Verdict and judgment for contestants, and the executor appeals.

Error, and new trial ordered.

Frederick H. Wiggin and Catherine J. Tilson, both of New Haven, for appellant.

Charles M. Lyman and Edward L. Reynolds, both of New Haven, for appellees.

Before MALTIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

BROWN, Judge.

Alma C. Streitlein of New Haven died on February 15, 1942, leaving an instrument dated January 27, 1940, and another dated May 27, 1940, which on May 2, 1942, were admitted to probate as her last will and codicil, respectively. From this decree the plaintiffs appealed to the Superior Court alleging that the deceased was of unsound mind and lacked testamentary capacity. By their verdict the jury found the issues for the plaintiffs. The named defendant appeals from the denial of its motion to set aside the verdict, and also from the judgment, assigning errors relating to the charge and rulings upon evidence.

The maiden name of the testatrix was Alma Celestine de Beust. She was born in East Haven on July 19, 1860, and was twice married, first to Louis Streitlein, who died in 1915, and second in 1922 to William Stietz, from whom she obtained a divorce July 10, 1934. There was no issue of either marriage, but she adopted the plaintiff Florence as her daughter in 1908. The other plaintiff, Walter Boschen, is the only nephew and natural heir of the testatrix, being the son of her deceased sister. The named defendant is the executor named in the will. The estate inventoried approximately $50,000. By the will, the testatrix, after bequeathing all of her jewelry and linen to Walter and five dollars to Florence, and making several other relatively minor bequests, left all of the residue to the General Hospital Society of Connecticut, the net income to be applied toward maintaining free beds for poor and deserving women patients at its hospital in New Haven. By the codicil the bequest to Walter was revoked and one of five dollars substituted, and the will was republished and confirmed in all other respects. At the trial the defendant offered the uncontradicted evidence of the attorney who prepared the will and codicil, and that of the other attesting witnesses, of the due execution of both instruments.

The evidence upon the issue of testamentary capacity was voluminous. An examination of it discloses little which substantiates the claim of the plaintiffs that the testatrix was of unsound mind. However, as we find error on the appeal from the judgment, it is not necessary to consider whether the verdict should have been set aside.

The defendant claims that the court erred in charging that the will would not be valid unless its due execution appeared from the testimony of the attesting witnesses, its contention being that, since the plaintiffs' only reasons of appeal were that the testatrix was of unsound mind and lacked testamentary capacity, the issue of due execution should not have been submitted to the jury. The appeal from the judgment of the Probate Court accepting the will took up to the Superior Court for retrial the special statutory issue whether there was a valid will, to be decided in the same manner as if it had not been decided in the Probate Court, and the burden of proving it rested upon the defendant as the proponent of the will. Comstock v. Hadlyme Ecclesiastical Society, 8 Conn. 254, 261, 20 Am.Dec. 100. The filing by the plaintiffs of their reasons of appeal was effective to limit thereto the introduction of evidence by them, but did not and could not change the statutory issue as to the validity of the will, or relieve the defendant of the burden of proving due execution as well as testamentary capacity. Livingston's Appeal, 63 Conn. 68, 75, 26 A. 470; see Lockwood, 80 Conn. 513, 520, 69 A. 8; Pope v. Rogers, 93 Conn. 53, 55, 104 A. 241; Kast v. Turley, 111 Conn. 253, 256, 149 A. 673. Where, as in this case, there is undisputed evidence sufficient to satisfy any reasonable mind that the will has been duly executed and those attacking it make no claim to the contrary, it is at least the better practice to instruct the jury to find that it has been duly executed.

The defendant further claims that the charge was erroneous in prescribing as requisite a higher standard of mental capacity in the testatrix than the law requires. The gist of the defendant's complaint is that the court, while it gave to the jury the recognized test of testamentary capacity repeatedly approved by this court, in addition...