In re Barney's Will

• Decision Date: 14 June 1899
• Citation: 71 Vt. 217,44 A. 75
• Parties: In re BARNEY'S WILL.
• Court: Vermont Supreme Court

44 A. 75

71 Vt. 217

In re BARNEY'S WILL.

Supreme Court of Vermont. Chittenden.

June 14, 1899.

Appeal from probate court, Chittenden county; Ross, Judge.

This was a contested proceeding for the probate of the will of Ira Barney, deceased. From a decree entered on a verdict for the contestants, proponent appeals. Reversed.

The proponent, Charles T. Barney, is a grandnephew of the testator, is a lawyer, and himself drew the will. The contestants are all the lawful heirs of the deceased, except the proponent's father. The will bequeaths all the testator's property to the proponent after a life estate in the testator's widow. The widow, the proponent, and the proponent's father are named as executors. The case had been tried once before, resulting in a verdict in favor of the will, and the judgment had been reversed in the supreme court upon the contestants' exceptions, and a new trial ordered. 70 Vt. 352, 40 Atl. 1027. At the beginning of the present trial, counsel for the proponent made an opening statement to the jury of such facts as his testimony would tend to establish, in reply to which counsel for the contestants remarked that, unless the proponent succeeded better in his proof than he did on his former trial, he would not be able to substantiate the facts stated. To this remark the proponent seasonably excepted. The contestants, under exception, were permitted to ask the proponent in cross-examination whether he did not know, at the time he was called upon to draw the will, that by the Roman law such a will would be void as to the drawer of it, and he replied that he did.

Seneca Haselton, D. J. Foster, and Charles T. Barney, for appellant.

W. H. Bliss, F. B. Deberville, and R. E. Brown, for appellees.

TAFT, C. J. 1. The remark of the contestants' counsel in his opening statement to the jury was improper. It was not in line with what an opening statement should be, viz. a statement of the issues in the case and the facts proposed to be shown, to enable the jury to better understand the testimony as it is given. A lengthy statement is never necessary, and an argumentative one improper. A discussion of whether the adverse party will or will not be able to substantiate the facts as claimed by him is not a legitimate opening statement it is a fact which can only be determined by the result of the trial, and the opinion of counsel in respect to it is illegitimate. It cannot be said in this case that the remark was harmless, for the trial began with the statement of counsel that upon a former trial of the case the verdict or result of the trial was against the will. We cannot say that it had no effect upon the minds of the jurors. It may have prejudiced them against the will.

2. The contestants claimed that the signatures on the alleged will, from the translucency of the paper, might have been transferred thereto by tracing; and bogus signatures of two of the witnesses whose names appear on the instrument as attesting witnesses, and of the alleged testator, were admitted in evidence, and the two witnesses were permitted to testify that, if shown the bogus signatures, and not told they were counterfeit, they might have thought they were genuine. This testimony was taken under objection and exception. The bogus signatures presented a collateral issue, and should not have been admitted, nor the witnesses questioned in respect to them. That the rule is not to be relaxed in favor of a cross-examination is equally clear, and has been many times held by courts of last resort in England and the United States.

3. The contestants claimed the...