Foster's Ex'rs v. Dickerson

• Decision Date: 20 April 1892
• Parties: CATHERINE FOSTER'S Exrs. v. DELIA S. DICKERSON, et al
• Court: Vermont Supreme Court

24 A. 253

64 Vt. 233

CATHERINE FOSTER'S Exrs. v. DELIA S. DICKERSON, et al

Supreme Court of Vermont

April 20, 1892

General Term, OCTOBER, 1891

Wilson & Hall, for the contestants.

OPINION

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 wa 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. ss. 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." Freeman on Judgments s. 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 principal 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 were insane delusions; that this insanity was progressive in its character until the forepart of January, 1876, when she was confined in an insane asylum at Brattleboro, where she remained until Feb. 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, 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' views of her husband's treatment of her, and his conduct toward 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 or 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 Dunsmore, 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 he 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 witnesses's 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 Vt. 499; Cram v. Cram, 33 Vt. 15; Hathaway v. Nat. Life Ins. Co., 48 Vt. 335; State v. Hayden, 51 Vt. 296; Chickering v. Brooks, 61 Vt. 554; In re Henry Blood's Will, 62 Vt. 359. Such witness cannot be precluded from giving his opinion because the conversations, dealings or other observed facts, were of a limited rather than of an extended character, nor because he is unable to give the conversation, but can only state the manner in which the party conversed, Cram v. Cram, supra. It is for the jury to say what credit and weight are to be given to the opinion of such a witness in view of the extent and character of the conversations, dealings or other observed facts to which he has testified, as well as his character and intelaligence and apparent interest or want of interest in the event of the litigation. This rule disposes of the exceptions taken by the contestants to the admission of the opinion of this class of witnesses on the ground that the conversations, dealings or observation, constituting their knowledge of the testatrix, were too limited to render their opinion as to her sanity admissible.

It is contended that the form of the question to this class of witnesses in several cases, and in some instances to expert witnesses, was objectionable in that is called for the opinion of the witnesses in regard to the sanity or insanity of the testatrix, thus calling upon them to take the place of the jury, and determine the issue on trial in giving their opinion. The objection to these questions was general and did not call the attention of the court to the form of the question in this respect. When the subject matter of the inquiry is admissible, and only the form of the inquiry is objectionable, the objection must be so framed as to call the attention of the court directly to the precise defect in the form of the inquiry, otherwise such objection cannot avail the excepting party. Hence, if the questions were improper in the respect claimed, this objection cannot now avail the contestants.

However when the question in issue is that of sanity or insanity, it is proper to ask a non-expert witness to give his opinion as to the person's sanity or insanity, based upon the facts concerning which he has testified. There is no difference in the rule permitting an expert or a non-expert witness...