Holton v. Ellis

• Decision Date: 01 October 1946
• Docket Number: 302
• Parties: FRED E. HASTINGS, ADMR. ESTATE OF ABBY T. HOLTON v. THEODORE M. ELLIS ET AL
• Court: Vermont Supreme Court

49 A.2d 210

114 Vt. 471

FRED E. HASTINGS, ADMR. ESTATE OF ABBY T. HOLTON v. THEODORE M. ELLIS ET AL

No. 302

Supreme Court of Vermont

October 1, 1946

May Term, 1946.

Trial by Court.

1. An expert witness may not be asked on examination whether the testator or grantor was competent to make a will or deed since that involves a legal opinion as to what constitutes such competency.

2. While a reasonable opportunity to show in cross-examination that a witness is unreliable, prejudiced or biased is a matter of right and much latitude is to be allowed in this line, the extent to which it shall be permitted to proceed rests largely in the sound discretion of the trial court, whose action will not be revised on appeal unless an abuse of discretion is shown, and the contrary not appearing it will be taken that the ruling was made as a matter of discretion.

3. A trier of fact may in the exercise of his discretion exclude a question as being too remote in point of logical relation to the issue on which it is offered.

4. Where a question asked a witness is objected to on the ground of immateriality, if no offer is made as to the expected answer, no exception is available.

5. No abuse of discretion in the exclusion of a question is shown when the matter inquired about has been previously covered in the testimony.

6. A non-expert witness may give his opinion as to the sanity or insanity of another, when based upon conversations or dealings which he has had with such person, or upon his appearance, or upon any 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 for his opinion.

7. When the ultimate fact in issue is found by the trial court, error does not appear in the failure to state the effect given to the subordinate facts or to report evidence.

8. Refusal of a requested finding which is in part unsound is not error.

9. An exception to a failure to find as requested merely on the ground that it is supported by the uncontradicted evidence without pointing out why or how the facts requested are material is not available on appeal.

10. A statement in findings of fact that the trier fails to find fraud or undue influence is equivalent to a finding that fraud or undue influence were not present.

11. Upon trial of a civil case without jury the findings have the standing of a verdict expressly approved by the trial court and cannot be overturned merely because the evidence preponderates against them.

12. The rule as to measure of capacity to make a gift is that the donor must have had enough capacity to enable him to understand and comprehend in a reasonable manner the nature and effect of the business transacted.

13. Doubtful findings are to be construed to support the decree if they may reasonably be so construed.

14. Questions relating to the tendency of evidence, or lack of evidence, are not before the Supreme Court when the findings are unchallenged.

15. When a finding is unchallenged, error in the admission or exclusion of evidence relative to the subject matter of such finding is of no consequence.

BILL to set aside gift inter vivos. In Chancery, Caledonia County, Cushing, Chancellor. Decree for the defendants.

Decree affirmed.

James B. Campbell and Hunt & Hunt for the plaintiff.

Witters & Longmoore for the defendant Ellis.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

SHERBURNE

On December 4, 1942, Abby T. Holton of Concord had her savings account in the defendant bank made over into the names of herself and defendant Ellis. In the bill of complaint brought by her guardian the plaintiff alleges fraud and undue influence upon the part of Ellis, and lack of capacity upon the part of Mrs. Holton to make a gift, and asks that Ellis be ordered to deliver the bank book representing the account to the guardian, and that the bank be ordered to pay the money in the account to the guardian upon the presentation of the bank book and his order. Both defendants filed answers, and later the defendant bank transferred the deposit into a new account in the name of the clerk of the county court to await the outcome of the litigation, and filed a disclaimer. The case was heard in 1944, before the enactment of No. 30 of the Acts of 1945. Findings of fact were made and decree was entered for the defendants. Prior to the entry of this decree Mrs. Holton had deceased, and Fred E. Hastings had entered to prosecute as administrator upon her estate. The case has been brought here by him on exceptions.

The findings of fact, filed before the death of Mrs. Holton, show that she was 87 years of age, and was a tall, slim, frail person, who had not had any serious illness for the past few years. Her husband died in 1928 leaving her residing alone. He left some property consisting of stocks, bands, bank deposits and the home, which she handled, and she received the interest coupons and dividend checks and deposited them in her account until the appointment of a guardian on February 26, 1944. During the lifetime of Mr. Holton bank accounts had been kept by both him and her in their sole names in three banks, but at some time before his death these accounts were changed into joint accounts payable to either or the survivor. She was conversant with joint accounts, knew how they were established, and the rights of the parties with respect to withdrawals. The only near relative of Mrs. Holton is an unmarried nephew, 56 years of age, who came to live with her in February, 1942, after the death of his mother. Defendant Ellis is employed by a plumbing concern in St. Johnsbury. In 1936 this concern installed a heating plant in Mrs. Holton's home. Since that time Ellis had visited there to service the heating plant and to install other equipment. He had also visited there at other times and had befriended Mrs. Holton upon several occasions in different ways. Ellis' wife is a hairdresser and had had Mrs. Holton as a client, and had also visited her upon occasions when Ellis went there either to service the various appliances or to make a social call. On November 17, 1942, Mrs. Holton and Ellis went to the defendant bank in St. Johnsbury, and on that occasion $ 107.51 was withdrawn to pay for five cashiers checks issued to pay taxes and insurance on Mrs. Holton's home and three other bills against her. On December 4, 1942, Mrs. Holton and Ellis went to the First National Bank in St. Johnsbury and obtained from a safe deposit box her bank book for her account in the amount of $ 5010.87 in the defendant bank. They then went to the defendant bank where this account was placed in their joint names with the right of survivorship in the presence of Milton A. Julian, a bank employee, who had known Mrs. Holton since 1917. After this was done the new passbook was handed by Julian to Mrs. Holton, who, in turn, handed it to Ellis, after which it was left with the bank for safekeeping. At this time Julian informed Mrs. Holton of the effect of the creation of the joint account. On one occasion subsequent to this date Mrs. Holton withdrew $ 200.00 from the account, and after this the deposit book remained in the bank until March 7 or 8, 1944, when it was delivered by the bank to Ellis. After his appointment as guardian Hastings learned of the joint account. On March 6, 1944, Hastings made a demand on Ellis for the delivery to him of the passbook but did not get it, and Ellis went to the bank and got it and notified the bank not to make any payments from the account. On March 8, 1944, Hastings interviewed the bank's officers and gave them a copy of his appointment as guardian and demanded the passbook, but it was not delivered.

Following the death of her husband Mrs. Holton went to the Battle Creek Sanatorium in Battle Creek, Michigan, and upon her return evidenced some peculiarities with respect to her diet. Findings 5 and 12 read as follows:

"5. Commencing sometime in 1941 Mrs. Holton showed evidence of developing hallucinations. These extended from the idea that a neighbor has wished to kill her to making statements that people who were then in good health had been injured or were sick. During the year 1942 these hallucinations continued.

"12. On August 22, 1944, Mrs. Holton was examined by Dr. James C. O'Neil, an expert psychiatrist. On that date he found that she was suffering from senile dementia, and testified that it was his opinion that she was then insane. Senile dementia is a progressive disease developing from a state of normalcy to insanity. I am unable to find by a preponderance of the evidence that though Mrs. Holton was suffering from senile dementia on the 22d day of August, 1944, when she was examined by Dr. O'Neil, that almost a year and nine months prior to that time. namely on the 4th day of December, 1942, that her mental state was such that she was not appreciative of the act which she was doing when she transferred the account in the Passumpsic Savings Bank from her sole name to the joint names of herself and Ellis. On the contrary I find that day Abby T. Holton knew what she was doing and did what she intended and desired to do. I fail to find that any fraudulent acts by defendant Ellis or undue influence on his part prompted Abby T. Holton to create the joint account in the Passumpsic Savings Bank."

EXCEPTIONS RELATIVE TO EVIDENCE

Dr O'Neil, called by the plaintiff as an expert in mental diseases, testified to examining Mrs. Holton on August 22 1944, and that from what he then observed and learned and the testimony he had heard in court he was of the opinion that she was insane on December 4, 1942, and was incompetent to transact any...