Frances J. Gilfillan v. William J. Gilfillan's Estate
| Decision Date | 04 February 1916 |
| Parties | FRANCES J. GILFILLAN v. WILLIAM J. GILFILLAN'S ESTATE |
| Court | Vermont Supreme Court |
May Term, 1915.
ASSUMPSIT. Plea, the general issue. Trial by jury at the June Term, 1914, Caledonia County, Butler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. While the case was pending in this Court, defendant preferred thereto a petition for a new trial on the ground of newly discovered evidence, which was served and filed and heard with defendant's exceptions.
Judgment affirmed, to be certified to the probate court.
Dunnett & Leslie for the defendant.
Porter Witters & Harvey for the plaintiff.
Present: MUNSON, C. J., WATSON, HASELTON, POWERS, AND TAYLOR, JJ.
This is an appeal from the disallowance of commissioners on the estate of William J. Gilfillan. Plaintiff is the widow of intestate's brother and during the time in question lived with her son Walter Gilfillan on premises formerly owned by her deceased husband. For several years before his death intestate lived with plaintiff and her son. Plaintiff seeks to recover for intestate's board and care while living with her. Intestate did some work around the place while living there, the amount and value of which was in dispute. Defendant claimed that intestate had given the plaintiff money and that the board and care were furnished in consideration thereof. He also claimed that the liability for board, if any, was to the son, Walter and not to the plaintiff.
In his opening statement to the jury plaintiff's counsel, referring to defendant's intestate, stated that Mr. Gilfillan was a man of large means. On an objection being interposed, the statement was withdrawn and the court told the jury that opening statements were not evidence in the case and should not be considered in determining the issues. Defendant asked for an exception to the statement, to which the court said: The court did not direct that an exception be noted, and properly, for defendant was not entitled to it. See Fadden v. McKinney et al., 87 Vt. 316, 326, 89 A. 351. If the statement was unwarranted and the withdrawal and court's caution did not cure the harm, (which we find no occasion to question), it was rendered harmless by the subsequent events of the trial.
Sixteen exceptions relate in one way or another to the same subject-matter and in general can be considered together. Defendant showed by Walter Gilfillan on cross-examination but as part of his case that intestate let plaintiff have $ 1,000 in stocks at the time he gave away some of his property a short time before his death. The evidence to which these exceptions relate was received to meet defendant's claim that this stock was transferred on account of board against the objection that it was immaterial. Plaintiff was permitted to show by Walter Gilfillan that at the same time intestate gave witness some stocks and the kind and amount; that he also gave some to his other relatives; that John T. Ritchie did the business for intestate and "sent the money around." She was also permitted to show by Mr. Ritchie that in the fall of 1912 intestate sent for him to assist in making a division of his property; that intestate told witness what he wanted him to do with reference to dividing his property among his relatives, mentioning among others a gift of ten shares of certain stock to the plaintiff; that intestate said it was a gift, that he wanted to treat plaintiff the same as he did his sisters; that intestate wanted to make a distribution of his securities among his relatives, reserving the income during his lifetime; that intestate left it with witness to deliver the stock certificates and arrange for retaining the income while he lived. Witness was permitted to state the total amount thus distributed and the names of the various relatives and the amount given to each.
The burden of defendant's complaint as to many of these exceptions is that the evidence to which they relate disclosed to the jury the fact that intestate was a man of large means. He does not discuss these exceptions separately but says of them that the evidence had no legitimate bearing on the question whether intestate was owing plaintiff a board bill at the time of his death. His argument loses sight of the fact that he had opened the door for this kind of evidence by attempting to show that the stock received by plaintiff was in satisfaction of this indebtedness. To meet this issue plaintiff was not confined to showing the bare fact that the stock was delivered to her as a gift but was entitled to show the corroborating circumstances. All this evidence affected the probability of the plaintiff's claim and was properly received. See Comstock's Admr. v. Jacobs, 86 Vt. 182, 84 A. 568, and numerous cases cited later on the question of relevancy.
The eighth exception is without merit. After Mr. Ritchie had testified to the distribution of certain of intestate's property, counsel asked how much he then had left. The court sustained defendant's objection, remarking, "We will assume that he had enough left to pay his bills, unless something appears to the contrary." To this remark counsel for defendant asked and were allowed an exception. Thereupon, the court said: "I will amend it by saying that we won't assume that he didn't have money enough to pay his bills, unless there is evidence to that effect." To this defendant's counsel replied, "I think that is a proper assumption."
We have no occasion to consider the point argued by defendant as his ninth exception, as neither the bill of exceptions nor the transcript, which is made controlling, showing that an exception was even asked for.
Mr. Ritchie testified that he knew at the time of his interview with intestate that he had been boarding at the Gilfillans' for quite a number of years, and that he had some talk with intestate as to whether he should make a settlement with plaintiff for the board, in reply to which intestate said he would fix that up himself sometime. Witness was then asked: "And when you had this talk, what was you referring to and what was he referring to, as to fixing up?" Defendant objected that it was for the jury to say when witness had stated what was said. The objection was overruled and witness replied: "I was referring to his broad." Defendant's argument is based upon the question and would have much force, if the answer were as board. Witness could not testify, as a fact, to intestate's understanding of the conversation. McCarthy's Admr. v. Village of Northfield, 89 Vt. 99. The question permitted him to do this. But witness could properly testify as to what he referred to and that was all that he did. The answer cured the error in the ruling and leaves the defendant no ground of complaint. See Fife and Child v. Cate et al., 85 Vt. 418, 430, 82 A. 741; Linsley v. Lovely, 26 Vt. 123, 136.
Mr. Ritchie testified that intestate told him to distribute the stock certificates to the different relatives in accordance with their talk and to tell them it was a gift from him; that he took the certificates to St. Johnsbury and mailed to each his shares accompanied by a letter explaining the matter; that he enclosed an agreement to be signed and returned relating to dividends during intestate's lifetime; that on the return of the signed agreements he forwarded same to intestate with a letter explaining what he had done. The court found that in doing this witness was acting as intestate's agent. Subsequently plaintiff offered a copy of the letter that was sent to her accompanying the stock in question which was received against the objection that it did not appear that Mr. Ritchie was authorized to write it--"no testimony that he was authorized to do anything except to distribute the stock"--and that any letter that he wrote was not binding upon defendant. Defendant's counsel admitted that Mr. Ritchie had the authority to take the property and deliver it and take a writing showing the terms of the delivery but insist here that any "soliloquy" that he wrote on the subject in the course of doing the business was not admissible. The only thing in the letter that is complained of is the statement, "This is a gift from William J. Gilfillan to you." Defendant's argument is that a witness cannot be corroborated by statements made in writing even though he testifies that he was authorized to make them. He treats the use of the letter as of the same character as the use by a party of self-serving declarations. Though the letter would tend to corroborate Mr. Ritchie's testimony, that was not the purpose for which it was received. For the purpose for which it was offered, it stands as though Mr. Ritchie had not testified that the stock was delivered as a gift.
Was the declaration contained in the letter evidence in chief? It was conceded that the writer had authority to deliver the stock and on the uncontradicted evidence he was to inform the beneficiaries including the plaintiff that it was a gift with certain conditions. The court found the fact that in what he did he was acting as intestate's agent. Though Mr Ritchie testified that nothing was said about doing this by letter, there was sufficient evidence tending to show that he was acting within the scope of his authority in doing what he did at least to make it a question for the jury, and the trial court so regarded it. His declaration that the stock was sent as a gift from intestate was therefore evidence against his principal, if found to have been made as part of a transaction within the scope of his authority. Deming v. Chase, 48 Vt. 382,...
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