Cobb v. Follansbee

• Decision Date: 01 April 1919
• Citation: 107 A. 630
• Parties: COBB v. FOLLANSBEE et al.
• Court: New Hampshire Supreme Court

107 A. 630

COBB

v. FOLLANSBEE et al.

Supreme Court of New Hampshire. Grafton.

April 1, 1919.

Transferred from Superior Court, Grafton County; Marble, Judge.

Proceedings by Lucy A. Cobb, executrix of the will of Christina F. Follansbee, to probate the will, opposed by Henry A. and Charles B. Follansbee. Verdict for contestants, and the executrix excepts. Exceptions overruled.

Probate appeal from the allowance of a will. The issues of sanity and undue influence were tried by jury, with a verdict for the executrix on the first issue and for the appellants on the second.

The charge was that the execution of the will was procured by undue influence and fraud upon the part of the executrix and her husband. Subject to exception, evidence was received bearing upon the relation of the parties, including the testatrix, both before and after the execution of the will.

Before the executrix elected to testify, and subject to exception, the appellants were permitted to testify as stated in the opinion. After such election they were permitted to testify generally. Transferred from the January term, 1918, of the superior court.

John H. Noonan, of Enfield, and Robert W. Upton, of Concord, for appellants.

Scott Sloane, of Lebanon, and Raymond U. Smith, of Woodsville, for appellee.

PEASLEE, J. There are in this case a large number of exceptions to the admission of evidence. Many of these relate to testimony tending to show the relations of the various parties, their feelings, purposes, and actions. Many others relate to the state of mind of the decedent, to the rationality, or otherwise, of her views, to influence exerted over her, to fraud practiced upon her, and to a plan to deceive the heirs as to the extent of her property and the terms of the will she had made. The issues tried being the sanity of the testatrix and fraud or undue influence in procuring the execution of the will, all the matters above enumerated were material, and evidence upon them was property received. In such a trial the field open to investigation is very broad. The argument that much of the evidence was hearsay is based upon the erroneous idea that many of these questions were not material to the issues tried. So far as the exceptions rest upon this argument, they must be overruled. Gibson v. Boston, 75 N. H. 408, 75 Atl. 103. The questions presented were merely of remoteness, and were for the trial court.

It is urged that the testimony of the appellants to facts occurring in the lifetime of the decedent should not have been received, because under our decisions the injustice to result from its exclusion must appear from evidence other than the testimony of the surviving party. P. S. c. 224, §§ 16, 17; Harvey v. Hilliard, 47 N. H. 551; English v. Porter, 63 N. H. 206. This is the language of the rule laid down in the cases, but its limitations have never been stated.

It is important to note at the outset that from the earliest decision under the statute (Chandler v. Davis, 47 N. H. 462) down to the latest (Harriman v. Bunker, 106 Atl. 499), the general rule is stated to be that if the proffered testimony related to facts the decedent could testify to, if living, a case of injustice is not made out. If, on the other hand, the evidence relates to a matter unknown to the decedent, that fact alone calls for a finding or ruling that injustice would result from its exclusion. While language is to be found in some of the opinons inconsistent with the latter holding, it will be found that in every case but one such statements were unnecessary to the decisions, and that they were not intended to modify the thoroughly established construction of the statute. Harvey v. Hilliard, 47 N. H. 551; True v. Shepard, 51 N. H. 501; Cochran v. Langmaid, 60 N. H. 571; English v. Porter, 63 N. H. 206; Sheehan v. Hennessey, 65 N. H. 101, 18 Atl. 652; Howie v. Legro, 78 N. H. 325, 99 Atl. 650.

The meaning of the statute has been considered in a large number of reported cases, some forty in all. All but three of these relate to offers by the survivor to testify to facts known to the decedent. It is in this class of cases that the rule here relied upon has been announced and applied. Howie v. Legro, supra. The earliest case in which it is laid down that the proof of injustice must be by evidence other than the testimony of the survivor was of this class. Harvey v. Hilliard, 47 N. H. 551. The statement there made relates to such cases only. The general theory being that in such a situation the mouth of the survivor should be closed, an exception thereto must be established without his testimony. The quality of the testimony in mind in such cases is not its showing knowledge or ignorance on the part of the decedent, but its general bearing and efficiency on the issues to be tried. That is, the testimony of the survivor is not to be received to show that with it he has a good case while without it he will be deprived of just relief. It is this proposition to which the rule excluding the testimony of the survivor on the issue of injustice applies. True v. Shepard, 51 N. H. 501, 504.

It may be remarked in passing that no case has been found where such injustice was considered to have been established. We have no reported case permitting the survivor to testify to facts known to the decedent. In Hoit v. Kussell, 56 N. H. 559, 563, it was said: "If the rule is ever to be relaxed, this seems to be clearly a case where it may safe ly be done." But the case was disposed of on other grounds.

The rule excluding the survivor's testimony from consideration upon the issue of injustice has no application when the offer is to introduce evidence of facts unknown to the decedent. If the facts are of the latter class, they are admitted under the general rule established in Chandler v. Davis, supra, without regard to their importance or insignificance in the case. As to such facts, the survivor is a competent witness. Being a competent witness, his evidence is received so far as it appears to be of the admissible kind. The questions of the importance of his testimony and the hardship of the situation are not involved here, and the rule excluding his testimony on those questions has no application. In such cases those questions are not considered, because there is no occasion to look for added proof upon which to base a finding of injustice, for that finding is made upon the offer of the evidence. The contrary holding in Fosgate v. Thompson, 54 N. H. 455, has not been followed. There is in that case no discussion of the question now presented. It was assumed without argument, or even statement of the proposition, that the rule of proving injustice by other evidence was applicable to an offer to prove facts not known to the decedent.

It is significant that, as before stated, all but three of the reported cases relate to efforts to introduce the testimony of the survivor to facts known to the decedent. From this it is evident that the rule first laid down in Chandler v. Davis, 47 N. H. 462, that in general the survivor should be permitted to testify to facts not known to the decedent, has been followed in practice and acquiesced in by the bar. The claim that the offer of proof is not a sufficient basis for the ruling, though supported by Fosgate v. Thompson, supra, is denied in substance by what was said in Harrington v. Tremblay, 61 N. H. 413, and by the procedure adopted and approved in Parsons v. Wentworth, 73 N. H. 122, 59 Atl. 623.

An examination of the opinions in the cases where the rule excluding the survivor's...