Doolittle v. Upson

• Citation: 88 A.2d 334,138 Conn. 642
• Court: Supreme Court of Connecticut
• Decision Date: 15 April 1952
• Parties: DOOLITTLE v. UPSON et al. Supreme Court of Errors of Connecticut

Page 334

88 A.2d 334

138 Conn. 642

DOOLITTLE v. UPSON et al.

Supreme Court of Errors of Connecticut.

April 15, 1952.

T. Holmes Bracken, New Haven, with whom was Lewis J. Somers, Meriden, for appellant.

Herbert L. Emanuelson, New Haven, with whom was John F. Wynne, New Haven, for appellees.

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.

BROWN, Chief Justice.

Sarah R. H. Meigs of Madison died June 5, 1950, aged eighty-five years, leaving an instrument dated May 29, 1950, purporting to be her last will and testament. It named the plaintiff, Harriet H. Doolittle, executrix and chief beneficiary. On June 19, 1950, the Probate Court for the district of Madison refused to approve the instrument and admit it to probate. From this decree the plaintiff appealed to the Superior Court. The defendants are the beneficiaries under a prior will of the testatrix dated November 26, 1948. This was admittedly valid and effective when executed and would be operative to control the disposition of the testatrix' estate were it not for the instrument dated May 29, 1950. On the trial de novo before the Superior Court, the due execution of the 1950 will was not questioned, and it was agreed that the only two basic issues to be submitted to the jury were as to (1) testamentary capacity and (2) undue influence. On March 29, 1950, the plaintiff qualified as conservatrix of the testatrix under appointment by the Probate Court and functioned in that capacity until the latter's death on June 5, 1950.

The jury upon the trial in the Superior Court found that the will in question was not the last will and testament of the decedent, and in answer to interrogatories further expressly found that (1) testamentary capacity was not proven by the plaintiff proponent, and (2) undue influence on the part of the plaintiff was proven, seriatim, as to each and every item of the purported will. Upon the appeal to this court, the plaintiff admits that, since the jury found against her both on the issue of testamentary capacity and on that of undue influence, she must, in order to prevail, show error on both, and unless there is error on the issue of testamentary capacity any possible errors on that of undue influence become of no moment. See Ziman v. Whitley, 110 Conn. 108, 115, 147 A. 370; Meglio v. Comeau, 137 Conn. 551, 553, 79 A.2d 187.

The plaintiff's amended assignments of error consist of but three paragraphs, the first two alleging error in the court's charge and the third in certain of its rulings on evidence. One of her complaints concerning the charge relates to the court's failure to give two of her written requests. Each of these concerned solely the issue of undue influence. By reason of the plaintiff's concession recited above, they call for no consideration. The other claim is that the court erred '[i]n failing in its charge to explain to the Jury the position and meaning of a conservatrix, the duties of such, the extent to which the appointment of a conservatrix, and the exercise of the duties of such appointment would have any bearing upon the issues of testamentary capacity and/or undue influence.' Aside from excepting to the court's failure to give the two requests to charge, the plaintiff's only exception to the charge as given was in these words: 'I feel the jury should be instructed that the mere fact Mrs. Doolittle was conservatrix and appointed by the Probate Court would not of itself tend to show any undue influence because of the fact due to the Probate Court she had any control.' While the last few words quoted lack...