Carpenter v. Hatch

• Decision Date: 19 July 1888
• Citation: 64 N.H. 573,15 A. 219
• Parties: CARPENTER v. HATCH et al.
• Court: New Hampshire Supreme Court

15 A. 219

64 N.H. 573

CARPENTER

v. HATCH et al.¹

Supreme Court of New Hampshire. Cheshire.

July 19, 1888.

Appeal by the defendants from a decree of the judge of probate allowing the will and codicil of Silas Kendall. The issues as to each instrument were (1) that the testator was not of sound mind; (2) that he was induced to execute the instrument by undue influence of the plaintiff, Mason A. Carpenter, and of other legatees; (3) that the will and codicil were executed by the testator without reading or knowing their contents. The will was executed July 14, 1886, and the codicil September 4, 1886. The testator was never married. He died September 9, 1886, at the age of 80. The two defendants, his nephews, are his only heirs at law. By his will, the testator gave to the defendants the promissory notes which he held against them,—those of John T. amounting, with interest, to about $1,700, and those of Joseph K. to about $1,500. The remainder of his estate, amounting to about $3,500, he gave as follows: To the First Baptist Society in Nashua, $700; to the Baptist Church in Tyngsborough, Mass., $500; to Orlando J. Davis, $300; to George E. Davis, $400; to Charles W. Carpenter, $200; to Leon S. Carpenter, $100; to Diantha Carpenter, $700; to Susan J. Poole, $200; and by the codicil made his executor, the plaintiff, residuary legatee. Kendall in early life labored for Mial Davis, and lived in his family at Tyngsborough, and afterwards at Nashua, and attended the Baptist churches at those places. George E. is the son of Orlando J., the grandson of Mial Davis. From the spring of 1885 until his death Kendall lived in the family of Emma L. Carpenter, the widow of Charles L. Carpenter. He was during this time, by reason of his infirmities, unable to leave the house. July 14, 1886, both legs and the right arm were paralyzed. September 4, 1886, the other arm became paralyzed, and he died of chronic paralysis. Mrs. Carpenter's family consisted of Charles W. and Leon S. Carpenter, her minor sons; Warren and Diantha Carpenter, the parents of her deceased husband, and Susan J. Poole, her mother. Warren Carpenter and Kendall were cousins. Mason A. Carpenter is the husband of Emma L. Carpenter's sister. Subject to the defendants' exception, testimony was received that Mial Davis acted as deacon of the Baptist church at Tyngsborough, and was one of the most active members of the church, and that Kendall, when he lived in Tyngsborough, attended that church, and sat with Davis and his family in their pew; and that he acted as guardian of Orlando J. Davis after his father's death. No letters of guardianship or record of his appointment as guardian were produced. Declarations of Diantha and Charles W. Carpenter, against their interest, were offered by the defendants and excluded. Ednah Hatch testified that prior to July, 1885, she and her deceased husband examined Kendall's bank-books, railroad stocks, notes, and mortgages; that she called off the amount of the securities to her husband, who set them down on a paper, added them up, and told her what the total amount was; that she did not add up the figures, nor "follow him in her mind." She was then asked to state the footing announced by her husband. The paper is lost. The evidence was excluded, and the defendants excepted. Emma L. Carpenter was permitted to testify, subject to the defendants' exception, that in her opinion Kendall was of sound mind in the summer of 1886. A witness called by the defendants testified to the execution of a will by Kendall in November, 1885, and, on cross-examination, that "Kendall enumerated his bank-books and the notes he had, and stated how old they were, and how long since interest had been paid. It made an impression on my mind. He spoke of his relatives, and of the Davis family, with which he had been connected. He seemed to have in mind as well as anybody his property, and what he wanted to do with it." The codicil was written by Mason A. Carpenter, who procured the attendance of the attesting witnesses, signed Kendall's name, and made a cross in the signature, having placed the pen in Kendall's hand. The codicil was read to Kendall, and was written and executed in the manner stated at his request. The defendant requested the court to instruct the jury as follows: (1) There is no evidence that at the time of the execution of the will and codicil the testator was informed of the amount or character of his property. (2) The law presumes that Mason A. Carpenter controlled the mind of Kendall, and presumes the codicil invalid by reason of such control. (3) If Kendall had always been on affectionate terms with the Hatch boys, his nephews, and the members of the Carpenter family, through false statements, produced in his mind an insane delusion that the Hatch boys, in July, and before July 14, 1886, were treating him badly by moving for the appointment of a guardian, and there was no ground for such delusion, these points are proper for the consideration of the jury on the questions of testamentary capacity and undue in fluence.

The foregoing instructions numbered 1 and 2 were not given. The court instructed the jury, among other things, as follows: "If you find from all the evidence that Kendall, July 14, 1886, by reason of old age, loss of memory, bodily, infirmity, or from any other cause, failed to comprehend intelligently the property he...