In re Barney's Will
| Decision Date | 22 July 1898 |
| Citation | 40 A. 1027,70 Vt. 352 |
| Parties | IN RE IRA BARNEY'S WILL |
| Court | Vermont Supreme Court |
January Term, 1898
APPEAL by contestants from a decree of the probate court allowing an instrument as the last will of Ira Barney. Contested upon the grounds of defective execution, incapacity and undue influence. Trial by jury, at the March Term, 1897, Chittenden County, Munson, J., presiding. Verdict and judgment for the proponent. The contestants excepted.
Judgment reversed and cause remanded.
W. H Bliss, C. M. Wilds, F. B. Deberville and E. R. Hard, for the contestants, cited Digest, Lib. 34, Tit. 8; Lib. 48, Tit. 10 § 15; Billinghurst v. Vickers, 1 Phil. 187 194; Paske v. Ollat, 2 Phil. 323; Ingram v. Wyatt, 1 Hagg. Ecc. 384, 394; Wyatt v. Ingram, 3 Hagg. Ecc. 466; Cockraft v. Rawles, 4 Notes of Cases, 237; 1 Williams, Exrs. 59 (note 6) 60,61; Barry v. Butlin, 1 Curteis 637; Durling v. Loveland, 2 Curteis 225; Fulton v. Andrew, L. R. 7 H. L. 448; Tyrrell v. Painton, L. R. Prob. Div. 151, decided in 1894; Brown v. Fisher, 63 L. T. 465; Yardley v. Cuthbertson, (Pa. 1885) 1 Cent. Rep. 647; Cuthbertson's Appeal, 97 Pa. St. 163; Boyd v. Boyd, 66 Pa. St. 283; Waddington v. Buzby, (N. J. 1887) 9 Cent. Rep. 196; Boisaubin v. Boisaubin, 51 N.J.Eq. 252; Smith's Will, 95 N.Y. 516; Wheeler's Will, (N. Y. 1893) 5 Mesc. 279; Chappell v. Trent, (Va. 1893) 19 S.E. 314; Whitelaw v. Sims, (Va. 1894) 19 S.E. 113; Higginbotham v. Higginbotham, (Ala. 1895) 17 So. Rep. 516: Richmond's Appeal, 59 Conn. 226; Baylies v. Spaulding, (Mass. 1886) 1 New Eng. Rep. 914; Smith v. Smith, 67 Vt. 445; Crocker v. Chase, 57 Vt. 421; Simpler v. Lord, 28 Ga. 52; Davis v. Rogers, 1 Houst. (Del.) 44; Harvey v. Sullens, 46 Mo. 147: 2 Am. Rep. 491.
Seneca Haselton, D. J. Foster and Charles T. Barney for the proponent, cited Smith's Exrs. v. Smith, 67 Vt. 443; Barry v. Butler, 2 Moore P. C. 480; 1 Curteis 637; 1 Williams on Executors, 165; Jarman on Wills, 6th ed. 49; note to Hughes v. Meredith, 71 Am. Dec. 129; Russ v. Chester, 1 Hagg. Ec. 227. The requests were erroneous, being founded upon the false assumption that the proponent sustained a confidential relation to the testator. State v. Perrigo, 67 Vt. 406; Winchell v. Express Co., 64 Vt. 15; Lucia v. Meech, 68 Vt. 175; Amsden v. Atwood, 69 Vt. 527. It is not the duty of the court to isolate a part of the facts from the rest of the case. Foster's Executors v. Dickerson, 64 Vt. 233, 267; Thornton's Exrs. v. Thornton's Heirs, 39 Vt. 122; Ashley v. Hendee, 56 Vt. 209.
Present: ROSS, C. J., TAFT, ROWELL, TYLER, START and THOMPSON, JJ.
The testator, Ira Barney, resided in Essex; his entire estate was from $ 12,000 to $ 13,000, which by the will in question he devised to his wife, Caroline, for life with power to use the income and if necessary the principal for her support, and all that should remain at her decease to the proponent, Charles T. Barney, and his heirs. He appointed his wife, his nephew, Truman B. Barney, and said Charles T., executors.
Ira's heirs-at-law were a brother, Solomon Barney, a sister, Mrs. Oakes, and some fourteen nieces and nephews. His brother and sister and several of his nieces and nephews lived near him; some of them lived in other states. His brother was old, feeble and poor; he had had domestic troubles, had lost his property, and Ira had assisted him in his necessities, and had solicitude for him; his sister had no property of her own and was supported by her daughters, one of whom was in comfortable circumstances; his nieces and nephews were generally in moderate circumstances, some fairly well off; his nephew, Truman, was a prosperous farmer and surveyor, and worth $ 5,000 to $ 6,000; the proponent was Truman's only child, and was worth from $ 2000 to $ 4000.
Ira and his wife had no children. They exchanged visits with Truman's family, and were more intimate with them than with the other relatives. When Charles was between ten and twelve years of age, Ira and his wife lived at Truman's two years, and after that the families visited each other frequently, and Ira seemed attached to Charles down to the time the latter went out of the State to live in 1882, he then being about twenty-three years old. Charles afterwards made annual visits to his home, except in the year 1891, and on these occasions visited Ira and his wife, and they visited at Truman's. In April, 1894. Charles returned to his native town to live and practice law in Burlington, after which the relations between them continued friendly and pleasant.
The testator also seemed attached to his sister and his nieces, Mrs. Blood, Mrs. Parker, Miss Oakes and Miss Lucia E. Barney, but there was little evidence in respect to his relations with or regard for his other relatives. Mrs. Green and Miss Barney were so situated in their childhood that they were very often at his house and as children were on pleasant terms with him. The latter was there oftener on account of another grandniece about her own age, who was brought up by Ira. Mrs. Green's family moved into the state of New York when she was thirteen years old, Ira going with them to assist them, after which for thirty years they did not often see each other. During the last ten or twelve years of his life Mrs. Green lived in Burlington, and he was often at her house and manifested a kindly interest in her. Miss Barney was the only child of a deceased brother of Ira; she had obtained a good education by her own efforts, and was a teacher; she had no pecuniary means but her earnings; while she was at college in Burlington, from 1885 to 1889, she saw Ira often, and was on pleasant relations with him and his wife, and he was anxious for her success, spoke of her with pride, was interested in her welfare, and made her small presents; she went to Pennsylvania to teach in 1895.
The proponent is a lawyer, and at the time of the execution of the will resided in Dallas, Texas. He visited Vermont in the summer of 1890, spending about two weeks at his father's house in Jericho, about five miles from Ira's residence, during which time the testator and his wife visited there. The testator then requested the proponent to draw his will. The latter suggested that as he was not practicing law in Vermont Ira had better employ a Vermont lawyer, and mentioned Mr. Hard of Burlington, who had sometimes been the testator's legal adviser. Charles had never been his legal adviser before that time. Charles left for Texas on the following day, but returned to his father's in May, 1892, when the testator visited him there and again requested him to draw his will. The proponent told him he thought it better for him to employ a Vermont lawyer, but upon being urged finally consented to make a memorandum of what the testator wished embodied in the instrument, and upon his return to Texas to write it and mail it to him. Ira then gave him directions to draw the will, which was the first intimation Charles had that Ira intended to make him a beneficiary. Charles asked him if he did not wish to give something to other relatives, and Ira said, no, that he and his wife had decided to have it made as he had directed. Truman was present when these directions were given. Truman and Charles testified that when Charles asked this question, Ira mentioned the names of most of his relatives, and gave reasons why he did not wish to make bequests to them, Truman and Charles saying nothing. Charles made a memorandum, and Ira directed him to send the will to Truman, as he did not like to write, and should wish to have Truman write for him if he wanted any changes made. Upon Charles returning to Dallas he dictated the will, as directed, to his stenographer, who wrote it out on a typewriter, and Charles sent it to his father, who received it two or three days before the date of its execution. On the day of its execution Truman carried it to Ira, who read it over in the presence of his wife, and they both said it was just as he had directed. Ira then suggested that they should go over to Brown's store where he could execute it. This was done, and the will was signed in the presence of the attesting witnesses and of Truman. No question arises in respect to the formal execution of the instrument. It appeared by Truman's testimony that Ira had possession of the will after its execution until Jan. 20, 1896, when Ira handed it to Charles with a considerable part of his assets.
The foregoing are the facts that the evidence of the respective parties tended to establish. All the evidence relative to the inception of the plan of the will, the direction about drafting it, the drafting and sending it for execution, Ira's reading it, and his subsequent possession of it, and the evidence about the transfer of property to Charles, came from Truman and Charles. No other relative knew that he had made or intended to make a will. He was seventy-nine years of age when the will was executed, June 11, 1892. His wife was then living and was four years his junior. She died in February, 1894, after which Ira remained a few weeks in his house and then visited at Truman's, and with other relatives and friends, until Sept. 1, 1894, when he moved his furniture to Truman's and remained there until he died. The testator had a common school education, was close in business, of average ability, and retained his mental faculties well till within a day of his death, which occurred February 2, 1896. It appeared that if he had died intestate, his brother, his sister, Truman, and Lucia E. Barney would each have inherited an eighth of his estate, and the other four-eighths would have gone to the other nieces and nephews.
During Ira's last sickness, from December 21, 1895, to February 2, 1896, the proponent and his father attended and...
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