Foster's Ex'rs v. Dickerson

• Decision Date: 20 April 1892
• Court: Vermont Supreme Court
• Parties: FOSTER'S EX'RS v. DICKERSON et al.

24 A. 253

64 Vt. 233

FOSTER'S EX'RS

v. DICKERSON et al.

Supreme Court of Vermont, General Term.

April 20, 1892.

Exceptions from Franklin county court; Veazey, Judge.

From an order of the probate court for the district of Franklin, admitting to probate an instrument purporting to be the last will and testament of Catherine A. Foster, Delia S. Dickerson and others, contestants, appealed. The contestants plead—First, that the paper was not the last will and testament of the said Catherine A. Foster; second, that the testatrix did not have sufficient mental capacity to make a will; third, that the instrument was procured by undue influence and fraud. Verdict for the proponents. The contestants except. Affirmed.

The letters referred to in the opinion were letters which passed between the legatees under the will and the contestants at the time of the confinement of the testatrix in the insane asylum, and had reference to her confinement there, and final cure and release. The stipulation referred to in point 15 of the opinion was as follows: "Whereas, at the trial of the above-entitled cause before the probate court for the district of Franklin, the testimony of witnesses produced before said probate court, and taken to be used before said probate court, was written down in full by John H. Mimms for the use of said probate court, and said copy is now in the hands of said probate court: Now, it is agreed in the above-entitled cause that the testimony so taken and used before said probate court of witnesses that may be deceased, or unable to attend court by reason of sickness or accident, or absent from this state, at the time said cause is tried in said Franklin county court, may be read from said copy in the hands of the probate court, to the same extent that such witnesses might testify by laws and rules governing the admission and rejection of evidence, if present in court at the time of trial and offered as witnesses in said cause: provided, however, that the testimony of the following witnesses used before said probate court is excepted from this agreement, viz., the three attesting witnesses to the will in question. Persons absent from the state at the time of trial, referred to in the foregoing agreement, shall include persons residing out of the state, and who are not in the state at the time of the trial. It is further stipulated that the witness Mrs. French, of Bennington, at the option of the proponents, shall be considered unable to attend by reason of sickness under this agreement." The remaining facts sufficiently appear in the opinion.

Ballard & Burleson, Farrington & Post, and J. Noble Hayes, for proponents.

Wilson & Hall, for contestants.

THOMPSON, J. This is an appeal from a judgment admitting to probate an instrument purporting to be the last will and testament of Catherine A. Foster. The contestants are the heirs at law of the testatrix, and oppose the allowance of such instrument on the ground of want of mental capacity in the testatrix to make a will, and that the instrument was procured by undue influence and fraud.

1. Mrs. Julia Hayes, one of the legatees under the will, subject to the contestants' exception, was admitted as a witness on behalf of the proponents, and was allowed to testify upon all the material issues in the case The evidence of the contestants tended to show that this witness was one of the parties who exercised an undue influence over the testatrix, if any was exercised, in the production of the instrument admitted to probate, and they insist that she is a party to this issue raised by the pleadings and on trial, especially as she is a beneficiary under this instrument, and that the deceased testatrix is the other party thereto, and that consequently Mrs. Hayes is not a competent witness by reason of the provisions of R. L. §§ 1002, 1003. This is not a case "where one of the original parties to the contract or cause of action in issue and on trial is dead." There was no cause of action until the death of the testatrix. The testatrix, by her legal representatives, is not a party to these proceedings, or in any way interested therein, directly or indirectly. The controversy is between living parties, who, on the one side, are the legatees under the will, represented by the proponents, and on the other side are the heirs at law of the testatrix. The former claim to take the estate under the will, and the latter under the statute regulating the descent of estates, insisting that the alleged will is a nullity. The act of the testatrix in making the alleged will is only the subject-matter of the investigation. The proceedings to have the will admitted to probate are in the nature of proceedings in rem, and establish the relation of all parties to the corpus of the estate. The gist of the action is not changed by the fact that the trial may indirectly involve a determination of the relations of the witness to the testatrix. "The probate of a will establishes its status, and the status thus established adheres to the will 'as a fixture, and the judgment or decree in the premises, unless avoided in some mode prescribed by law, binds and concludes the whole world.'" Freem. Judgm. § 608. Neither the creditors nor the debtors of an alleged testatrix are affected by the allowance or disallowance of an instrument claimed to be her will. Their rights and liabilities remain the same, in either event. In Stevens v. Joyal, 48 Vt. 291, which was an appeal from the decree of the probate court decreeing the entire estate of Joseph E. Joyal to the defendant as his lawful widow, it was held that the widow was a competent witness to establish the fact of her marriage with her alleged husband. The same objection to her competency as a witness was raised in that case that is urged in this. It was necessary to establish her marriage to entitle her to take the estate as widow. The question there decided is identical in principle with the question under consideration. Adhering to the rule laid down in that case, we hold that Mrs. Hayes was a competent witness.

2. Under their plea of want of mental capacity to make a will, the contestants introduced evidence tending to show that, prior to the execution of the alleged will, the testatrix was subject to insane manifestations as to her dress, and in her conversation, statements, acts, and conduct, and especially in regard to her husband, by accusing him of improper intimacy with other women, and of cruel treatment of her by abusive language, and by striking and beating her, and that these accusations were not based upon fact or reason, but ware insane delusions; that this sanity was progressive in its character until the fore part of January, 1876, when she was confined in an insane asylum at Brattleboro, where she remained until February 12, 1876, when she was released, improved, and returned to her home, but that she continued insane to the time of her decease. On the other hand, the evidence of the proponents tended to show that from a child Mrs. Foster had been of a nervous temperament, and had always been peculiar and eccentric in her character and conduct; that her peculiarities and eccentricities continued the same in their manifestations until the time of her decease, except in the fall and winter of 1875, when she was attacked with erysipelas, so called, and while suffering from this disease she was more or less in an excited condition mentally, which was increased by the presence of her husband, against whom she continued to make charges as before stated, and while in this condition she was sent to the asylum; that she was not then and never was insane, but that she was in an excited and delirious condition, which was temporary, and that after she returned to her home she was sane, and of sound and disposing mind to the time of her decease. To rebut the testimony of the contestants tending to show that the testatrix's views of her husband's treatment of her, and his conduct towards her and other women, were insane delusions, it was competent for the proponents to show acts of ill treatment by the husband, and his conduct, reputation, and character with reference to other women, so far as such conduct, reputation, and character were known to the testatrix. If she had reasonable grounds for her charges against him, resting on facts or his reputation known to her, her charges in these respects would not indicate that she was insane, or that the views she held and the charges she made had their origin in and were the delusions of a diseased mind. Hence on the issue thus raised by the contestants all the testimony of the proponents excepted to by the contestants, tending to show her husband's ill treatment, his improper conduct with other women, and his reputation in that respect in the community, which were known to her, was admissible. The testimony of Dr. George Bunsmore that soon after Mr. Foster's return from Europe he treated him for a venereal disease, and the testimony of Mrs. Swett that Mrs. Foster informed her that Mr. Foster had a disease of a private nature that ho contracted in Europe, bore directly upon this issue raised by the contestants, and was clearly admissible. None of the contestants' exceptions to this class of testimony are well taken. To sustain them would preclude the proponents from rebutting an issue raised by the evidence of the contestants.

3. It is well settled in this state that the opinion of a witness not an expert, upon the question of sanity or insanity, is admissible, when based upon conversations or dealings which he has had with the person whose sanity of mind is in question, or upon the appearance of such person, or upon any other fact bearing upon his mental condition, within the witness' own knowledge and observation, he having first testified to such conversations, dealings, appearance, or other observed facts, as the basis of his opinion. Lester v. Pittsford, 7 Vt. 158; Morse v. Crawford, 17...