In re Bean's Will

• Citation: 82 A. 734, 85 Vt. 452
• Case Date: February 19, 1912
• Court: United States State Supreme Court of Vermont

82 A. 734
85 Vt. 452

In re BEAN'S WILL.

Supreme Court of Vermont. Washington.

Feb. 19, 1912.

82 A. 735

Exceptions from Washington County Court; Willard W. Miles, Judge.

Proceedings by Charles Bean for the probate of the will of Orzella Bean, deceased, opposed by Everett A. Bean and others. From a judgment establishing the will, contestants bring exceptions. Affirmed.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

R. M. Harvey and John W. Gordon, for proponent.

Fred L. Laird and Harry C. Shurtleff, for contestants.

82 A. 736

HASELTON, J. This was an appeal from a decree of the probate court establishing a certain written instrument as the last will and testament of Orzella C. Bean. In county court trial by jury was had, and the verdict and judgment allowed and established the will. The contestants excepted.

The will was executed August 26, 1909. The testatrix was then past 70 years of age and was a widow; her husband having been dead about a year. By her will she gave $5 to each of her five children, namely, her four sons Hiram, Charles, Everett, Herbert, and her daughter Kate, the wife of Lee Lane. The residue of her estate she gave to her son Charles, the proponent of the will, which names him as executor. The sons Everett and Herbert and the daughter, Mrs. Lane, are the contestants. In county court the will was contested on the grounds of lack of mental capacity on the part of the testatrix and of undue influence exerted upon her by the proponent, Charles Bean. It appeared that the estate was worth about $2,900.

The proponent, Charles, was a witness, and in direct examination testified to the effect that he never influenced his mother to make the will in question. In cross-examination he was asked various questions about his talks with his mother. Some of them he answered by saying, "No," or, "No, sir," and some of them by saying, "Not to my knowledge." He was asked if he ever told his mother that she could give the other children $1 each and that then the will could not be broken. He replied, "Not to my knowledge." Examining counsel then said: "That wasn't a great while ago. You know whether you did or didn't." The witness replied, "I say not to my knowledge, sir." Counsel then said, "You mean to say that you didn't say that to your mother when you say, 'Not to my knowledge'?" This question was objected to and was excluded. The meaning of what he had said was clear enough, and required no explanation. Counsel for the contestants say that the answer was evasive, since he could not have told his mother what was implied in the question without his knowledge. But the witness was referring to the knowledge or recollection which he had on the witness stand. There is no occasion to ask a witness what he means by an answer when his answer is susceptible of but one meaning. There was no error in the exclusion of the question.

The proponent testified that he had corresponded with his parents for the "last" 10 years. In cross-examination he was asked: "Did you write this: T want you to have these things fixed up as soon as you can so there will be no fighting. All you will have to do is to will them all one dollar and they can't break the will.' Did you write that?" There was nothing in the question to indicate whether the inquiry related to a letter written to the testatrix or to her husband. Presumably, however, the question related to a letter written to the one or the other of his parents. The question was excluded and an exception was taken. The contestants claim that the question was admissible on the ground that, if the proponent had written the passage asked about, that fact tended to contradict the direct testimony of the witness. But it would not so tend unless the words were written to his mother. Error does not affirmatively appear.

At a later stage of the trial the contestants introduced in evidence certain letters written by the proponent. Two of them were written to the testatrix, and one of them was written to her husband, the father of the proponent. In one of the letters, dated about four years before the death of the husband of the testatrix, but addressed to her, the proponent said: "There is one thing I want you to do, that is to have things fixed as soon as you can so there will be no fighting. All you will have to do is to will them all one dollar and they cannot break the will." Doubtless this is the letter about which the contestants had inquired as above stated. It was received in evidence, and so, although the inquiry was not so framed as to entitle the contestants to an answer, they got the benefit of the matter they were trying to bring out.

The proponent called one Fiske, a clergyman, who, after testifying to seeing and observing the testatrix, testified as to her without objection thus: "Why I never saw anything that led me to feel that she did not understand what was going on." In cross-examination, Mr. Fiske testified that Mrs. Bean's husband was, as he supposed, afflicted with cancer in his last sickness, cancer on the lip and in the mouth; that the cancer was disagreeable to the sight and to the smell; that his look was pitiable and distressing; that the situation was, perhaps, aggravated by the disinfectants that were used; that every time the witness was there he saw Mrs. Bean caring for her husband; that she seemed at tinies very weak physically; that she made no conversation; that her complexion was bad; that the witness thought she was enduring a good deal; that it seemed as though she would break down; that it seemed as though she was enduring enough to make him or his family break down. He was then asked this question: "Now considering, Mr. Fiske, the strain that she had been through, considering all that you saw of her, considering the care that she had had of Mr. Bean in the condition that he was, considering that she was in a condition about to break down, such as to lead you to think that she would break down,, or your family would under a similar strain, would you want to say she was of sound and disposing mind?" The court did not permit this question to be answered, and the contestants

82 A. 737

excepted. The question did not confine the witness to an opinion based upon the things he had testified to, nor even to an opinion based solely upon the things observed by him. The question was not made admissible by the direct examination; for the witness had not testified that she was of sound and disposing mind, and besides it was not for the witness to say whether she was of a "disposing" mind, since to say that would be to give an opinion as to her testamentary capacity. There were various reasons why the course taken by the court was proper. Town of Londonderry v. Fryor, 84 Vt. 298, 79 Atl. 46; In re Esterbrook's Will, 83 Vt. 229, 75 Atl. 1; Chickering v. Brooks, 61 Vt. 554, 18 Atl. 144; In re Blood's Will, 62 Vt. 359, 19 Atl. 770; Fairchild v. Bascomb, 35 Vt. 398.

Various witnesses had testified, and properly, about the mental condition of the testatrix; and two of the attesting witnesses to the will, R. M. Harvey and E. M. Harvey, esquires, had given their opinion that at the time of the execution of the will the testatrix was of a sound and disposing memory. This testimony was not objected to, and did not, as the contestants seem to suggest, entitle them, on the cross-examination of Mr. Fiske, to take his opinion as to whether or not the testatrix was of a disposing mind.

The proponent's testimony tended to show that his father and mother had been opposed to the marriage of his sister, Kate, to Lee Lane, and that the parents ever after the marriage had hard feelings toward both her and her husband. The proponent's evidence tended to show that Lee Lane had abused his wife and that she had left him twice. Mrs. Lane, who is one of the contestants, took the witness stand, and in cross-examination by the proponent's counsel was examined as to whether she complained to her father and mother about her husband. She said that she hardly thought she said much about him; that the separation was the result of a misunderstanding; that she, perhaps, complained somewhat to her father and mother about her husband because he thought as he did. In redirect examination she was asked by her counsel if the separation was by reason of anything Mr. Lane did, and if the cause of the separation was anything that some third party outside the family did. The offers in connection with these questions were to show that the separation was not by reason of anything that Mr. Lane did, and that the separation was "because of something that some third party outside the family did." The questions were excluded under the offer, and the contestants excepted. There was, however, no error in excluding the testimony. The cross-examination as to the abuse of Kate by her husband was relevant only as it was connected with testimony tending to show knowledge of the situation brought home to the testatrix; and the offers accompanying the questions in redirect examination did not tend to show that, if the cause of separation was the conduct of a third party, that fact was brought home to the knowledge of the testatrix, or that any statement that such was the fact was ever made to the testatrix. The offers lacked a very essential element. In re Esterbrook's Will, 83 Vt. 229, 241, 75 Atl. 1; Foster's Ex'rs v. Dickerson, 64 Vt. 233, 250, 24 Atl. 253.

In direct examination Mrs. Lane was asked, "What have you ever noticed your brother Charles do in respect to your mother?" The witness answered, "Well, he wanted she should do as he said, and had a great influence over her." Objection being made, this testimony was excluded, and the contestants excepted. The answer was not responsive, and was not proper evidence, since undue influence cannot be shown by opinions divorced from facts, and great influence of a son with a parent may as well be proper as undue. Slack v....