Central Hanover Bank & Trust Co. v. Froment
| Citation | 49 A.2d 111,114 Vt. 523 |
| Decision Date | 01 October 1946 |
| Docket Number | 1062 |
| Parties | IN RE WILL OF MARY H. HAYS COLLINS |
| Court | Vermont Supreme Court |
May Term, 1946.
Undue Influence in Making of Will.
1. Undue influence upon a testator in the making of a will may be shown not only by direct evidence but also by any circumstances which have a legitimate tendency to prove that it was used.
2. In a will contest the burden of proving the existence of undue influence is ordinarily upon the contestant; but when the circumstances connected with the execution of the will are such as the law regards with suspicion, the burden is shifted to the proponent who must show affirmatively that the will was not procured by this means.
3. Usually, where a relationship of trust and confidence obtains between a testator and a beneficiary charged with exercising undue influence or where the beneficiary has gained an influence or ascendency over the testator, the law raises a presumption of undue influence, which establishes prima facia the existence of it, and is sufficient to defeat the will unless and until it is overcome by counter proof.
4. A testator, as a general rule, may dispose of his property as he sees fit, and it is only when the will is grossly unreasonable in its provisions and plainly inconsistent with the testator's duty to his family, that, in case of doubt, the inequality can have any effect on the question of undue influence.
APPEAL FROM PROBATE OF WILL. Trial by jury, Rutland County Court May Term, 1946, Cleary, J., presiding. Verdict directed for the proponent and judgment thereon.
No error is made to appear. The judgment establishing the instrument dated June 21, 1944, as the last will and testament of Mary H. Hays Collins, late of Middletown Springs in the District of Rutland, is affirmed with costs to the proponent. To be certified to the probate court.
Asa S. Bloomer and Ryan, Smith & Carbine for the contestants.
Lawrence & O'Brien and Joseph A. McNamara for the proponent.
Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS JJ.
This case is concerned with the probate of the last will and testament of Mary H. Hays Collins, late of Middletown Springs in the District of Rutland, who died at the Rutland Hospital on May 7, 1945, aged nearly 75 years. The will in question was executed in the office of Lawrence & O'Brien Attorneys-at-Law, in the City of Rutland, June 21, 1944. The instrument was presented for proof to the probate court by the Central Hanover Bank & Trust Co., the executor named therein, and was duly allowed by that court. From that judgment a general appeal was taken to Rutland County court by Edith Smith Froment, Brenton Greene Smith and Louise Hoyt Smith, cousins of the testatrix. The grounds of this appeal were: 1, the instrument was not properly executed, 2, the testatrix was not of sufficient mental capacity to make the instrument and, 3, the instrument was the result of undue influence exerted on the mind of the testatrix. Josephine S. Fitch, another cousin of the testatrix, intervened as a party contestant before trial in county court. At the time the instrument was executed, the testatrix had as her nearest relatives six cousins, including the four above named and Lewis Ginter Young and Edna Young Benchley, the two last named being children of Albert Young, an uncle of the testatrix, neither of whom appeared as a contestant. The above named contestants are children of Emma Young Smith, an aunt of the testatrix. During the trial, Mary T. Rennard, to whom the instrument here in question gives a legacy of $ 1,000.00, and who is not an heir-at-law of the testatrix, was allowed to intervene as a contestant on the ground that she was entitled to share in the estate under the terms of the will of the testatrix executed in 1934. Mrs. Rennard died soon after the trial in county court.
At the close of all the evidence, the proponent moved that the court direct a verdict establishing the instrument in question as the last will and testament of Mary H. Hays Collins. This motion was granted and a verdict was returned accordingly and a judgment thereon was duly entered. The case is here on contestants' exceptions to the granting of proponent's motion for a directed verdict and to the ruling of the court in excluding certain evidence offered by the contestants. While the appeal to county court was on the three grounds hereinbefore stated, the contestants do not here claim that the instrument in question was not duly executed nor that the testatrix was not of sufficient mental capacity to make the same. They do contend, however, that the instrument is the result of undue influence exerted by Williston J. Farrington, one of the four residuary legatees named in the will, and that the offered instrument is his will and not that of the testatrix. They also claim error in the exclusion of certain evidence which will be specifically referred to later.
We will first consider the questions raised as to the action of the court in directing a verdict for the proponent and in doing this the evidence must be taken in the light most favorable to the contestants. So considered, the evidence shows the following material facts.
The last will of Mary H. Hays Collins was executed by her June 21, 1944, at the law office of Lawrence & O'Brien in Rutland. It is limited to property in the United States and makes the following bequests. All clothing and wearing apparel to Margaret Murray, who entered the employ of Mrs. Hays, mother of testatrix, in 1906, so remained until death of Mrs. Hays in 1927, then employed by testatrix until the latter's death. She is married and has four children.
To Mollie Burke, a former employee of Mrs. Hays, all mortgages held on her property, the value of these being about $ 9,000.
To her cousins, Brenton Greene Smith, $ 5,000; Edith Smith Froment, $ 1,000; Josephine Smith Fitch and Louise Hoyt Smith, $ 100 each. Her cousins Lewis Ginter Young and Edna Young Benchley are mentioned as being otherwise provided for.
To Mary Townsend Rennard and B. Franklin Manierre, $ 1,000 each. They were friends of the testatrix.
To Collins Bethel, $ 5,000. He was an employee of testatrix while she resided at Middletown Springs.
To the Baptist Home Society of New York City, Williston J. Farrington, Mrs. Margaret Murray and Harriet Graham Sloan, each one fourth of the residue. Mrs. Sloan's portion is bequeathed to her children, in case she predeceases the testatrix. The Baptist Home Society, now called the Baptist Home for Aged is a charitable organization under the direction of the Baptist Church. The testatrix had been interested in it for many years as had been other members of her family. They had been Baptists and the bequest is made "in memory of Charles L. Young and Matilda Young Hays, " grandfather and mother of testatrix. Mrs. Sloan was a long time friend of both the testatrix and her mother. The status of Mrs. Murray has been above stated and Farrington was an officer in the Central Hanover Bank & Trust Company named as executor.
The testatrix was born in New York City May 25, 1870, and through her mother was the grand-daughter of Charles L. Young. Her husband died many years ago and at the time the instrument here in question was executed her heirs-at-law were the six cousins hereinbefore mentioned. Sara Young Baldwin, a sister of her mother, died in 1928 leaving a legacy of about $ 110,000 to the testatrix and a like sum to each of her cousins. The testatrix left an estate of about $ 1,800,000.00 and the greater part of this was a portion of the estate of her grandfather going first to her mother and at her death passing to the testatrix.
In 1908 and for some time thereafter the testatrix and her mother kept a winter home in New York City and a summer home at Great Neck, Long Island. They made several trips to Europe and during the winter seasons they entertained and were entertained by their friends and availed themselves of the opportunity afforded by the city to enjoy literature, art, music, the theatre and various other activities. In 1926 they gave up their residences in the United States and established themselves in Florence, Italy, where Mrs. Hays died in 1927. Mrs. Collins brought her mother's remains here for burial in the family lot in the Greenwood Cemetery in Brooklyn and after a visit here of about one month she returned to Italy where she continued to reside until 1941 when she returned to live in the United States because of war conditions in Europe. While residing in Italy the testatrix made occasional short visits to the United States. Soon after her return she purchased a home in Middletown Springs, in this state, which she kept during the remainder of her life.
The testatrix was an active person, always in good health, was gay and had a keen mind and was interested in current events including politics and world events. She was shrewd and capable and managed her ordinary affairs with ordinary skill and intelligence. She was a member of the Baptist Church and contributed to its support and to the support of its various subsidiary agencies. While in Italy she was interested in the American Church in Florence and while living in Middletown Springs, she attended and contributed to the community Church there.
In November, 1927, the testatrix placed a considerable portion of her property with the Union Trust Company of New York City which later became Central Hanover Bank & Trust Company under a custodian or agency agreement. In 1934 she transferred other stocks and bonds from the United States Trust Company to the Central Hanover Bank & Trust Company and from that time most of her securities were with the latter under a custodian or agency agreement. Under...
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