Holton v. Ellis

• Decision Date: 01 October 1946
• Docket Number: No. 302.,302.
• Citation: 49 A.2d 210
• Parties: HOLTON v. ELLIS et al.
• Court: Vermont Supreme Court

49 A.2d 210

HOLTON

v.ELLIS et al.

No. 302.

Supreme Court of Vermont.

Oct. 1, 1946.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Exceptions from Chancery Court, Caledonia County; Cushing, Chancellor.

Suit by Abby T. Holton, by Fred E. Hastings, her guardian, against Theodore M. Ellis and Passumpsic Savings Bank to require defendant Ellis to deliver a bank book to guardian and for an order to defendant bank to pay the money in the account to the guardian upon the presentation of the bank book and his order. Defendant bank transferred the deposit into a new account in name of clerk of county court to await the outcome of the litigation, and filed a disclaimer. Prior to entry of decree, Mrs. Holton died, and Fred E. Hastings entered to prosecute as administrator upon her estate. From an adverse decree, plaintiff brings exceptions.

Decree affirmed.

James B. Campbell, of St. Johnsbury, and Hunt & Hunt, of Montpelier, for plaintiff.

Witters & Longmoore, of St. Johnsbury, for defendant.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

SHERBURNE, Justice.

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 buardian, 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, bonds, 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 $5,010.87 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 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 on 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 business at that time. He was then asked in separate questions if she was then competent to make a gift, to deal with or dispose of her property, or to reach a decision in her own mind as to the prudent disposition of her property; and on reexamination he was asked if she was competent to go to the bank on that date and change a bank account of over $5,000 from her name alone into a joint account with herself and another person, without any consideration from that other person, and without any apparent reason for doing so. These questions were excluded subject to exception, upon the ground that they called for an opinion upon the ultimate question for the chancellor to decide. We need not labor the question as to whether an expert may never testify to an ultimate fact, as each of the questions here involved a question of law as well as of fact. An expert cannot be asked if the person in question was competent to make a deed or will, since that involves a legal opinion as to what constitutes such competency. 20 Am.Jur. Evidence, § 799. We said in Fairchild v. Bascomb, 35 Vt. 398, 416, 417, a will case, ‘what is sufficient capacity to transact business, or to make a will, is a matter of law, depending somewhat upon the nature of the business. A witness may not correctly apprehend the rule of law, and if he uses such expressions may be misled himself, or may mislead the jury. Hence the question should be so framed as to require him to state the measure of the testator's capacity in his own language, and by such ordinary terms or forms of expression as will best convey his own ideas of the matter.’ See also May v. Bradlee, 127 Mass. 414; Hall v. Perry, 87 Me. 569, 33 A. 160, 47 Am.St.Rep. 352; Coblentz v. Putifer, 87 Kan. 719, 125 P. 30, 42 L.R.A.N.S., 298. See also Chickering v. Brooks, 61 Vt. 554, 562, 563, 18 A. 144. As to the question asked upon reexamination the defendant objected that it included elements not in the case, such as, without any reason or any foundation, and plaintiff then made no claim that they were in the case. These exceptions are not sustained.

In the direct examination of Julian, assistant treasurer of the defendant bank, as defendant's witness, he testified regarding the source of the disputed account, that it was opened in Mrs. Holton's name in 1899, and in 1919 was transferred to a joint account with her husband, and that at the death of her husband in 1929 it became her property. Whereupon the plaintiff inquired the materiality and purpose of going back into these old accounts, and the defendant replied that it was simply to show that Mrs. Holton...