In re Campbell's Will

• Citation: 147 A. 687
• Parties: In re CAMPBELL'S WILL.
• Decision Date: 06 November 1929
• Court: United States State Supreme Court of Vermont

147 A. 687

In re CAMPBELL'S WILL.

Supreme Court of Vermont. Rutland.

Nov. 6, 1929.

Appeal from Rutland County Court; Prank D. Thompson, Judge.

Proceeding to establish a certain document as the last will of Mary W. Campbell, deceased. Prom a decree for proponents, contestants appeal. Affirmed.

Argued before WATSON, C. J., and POWERS, SLACK, MOULTON, and WILLCOX, JJ.

Jones & Jones and Lawrence & Stafford, all of Rutland, for contestants.

Marvelle C. Webber, of Rutland, for proponents.

WILLCOX, J. This case has been in this court once before upon appeal by proponents from a verdict and judgment for contestants. In re Campbell's Will, 100 Vt. 395, 138 A. 725, 54 A. L. R. 1309. It is now here upon an appeal by contestants from a verdict and judgment for proponents.

The instrument in question purports to be a will and is in the usual form of such documents, but that part thereof where the signature of a maker and of witnesses and the attestation clause would naturally come is mutilated and torn out, so that the document is wholly wanting in the formalities of due execution.

The record shows that the case by the proponents was presented upon the theory that said document was in form and content a will, and came to light under such circumstances as to lead to the inference that it had been made for Mrs. Campbell in her lifetime, and, although the proponents were unable by any direct evidence to show that the same had been duly executed with the formalities required by law, that such due execution was a fact which arose as an inference from all the circumstances shown from the finding, time, and manner of spoliation. The case by the contestants was presented upon the theory that said document was merely a copy of a will which Mrs. Campbell had legally revoked about four years before her death, and that no such inference of fact could arise from the mutilation of such a copy from which due execution, and that the document itself was the last ill and testament of Mrs. Campbell, could be found.

Contestants rely upon six points of claimed error. Mrs. Campbell deceased January 24, 1926, leaving a surviving husband, William E. Campbell, and certain heirs at law, the proponents in this case. William E. Campbell, deceased April 5, 1926, leaving surviving certain heirs at law, the contestants in this ease. And while the contestants here are not shown, themselves, to have been guilty of the mutilation of the document in question, they are in no better position than Mr. Campbell would have been, for they stand in his stead, and are affected by his acts and declarations in the same manner and to the same extent as he would have been had he been the contestant himself. Hudson v. Hudson, 287 Ill. 286, 122 N. E. 497, 502; In re Lambie's Estate, 97 Mich. 49, 56 N. W. 223.

By the terms of the propounded document Mr. Campbell was given a life use only of the major part of the property of his deceased wife, which was shown to be approximately $30,000. Although the record shows that the document was in the possession of Mr. Campbell after the decease of his wife, it does not show that he made any move to deliver it to the probate court or to the executor named therein, as required by G. L. 3215.

After Mrs. Campbell's decease Mr. Campbell was ill and confined to his bed, and, while so confined and within a week or 10 days after her death, he sent for Ernest H. O'Brien, formerly an attorney at law of this court, and in whose office, when he was in lawful practice, Mrs. Campbell had a will drawn some time between 1910 and 1916. While O'Brien was in Mr. Campbell's bedroom, the document in question was taken by Mr. Campbell from a little tin box or trunk, and, with instructions to destroy it, was handed by him to O'Brien. After O'Brien had torn out the missing leaves, at Campbell's request the document was handed back to him and by him returned to the tin trunk. Campbell tore up the part of the document removed by O'Brien, handed the bits to a Mrs. Stevens, the house-keeper, who burned them.

Thereafter, on March 10, 1926, P. C. Wheeler, was of the proponents, visited Mr Campbell in his bedroom and had conversation with him. Against the objection of the contestants Mr. Wheeler was permitted to testify that Mr. Campbell told him "there was a will." No ground of objection was stated. There is no question for review. Comstock's Admr. v. Jacobs, 89 Vt. 133, 94 A. 497, 501, Ann. Cas. 1918A, 467; Morgan v. Gould, 96 Vt. 275, 119 A. 517; Robinson v. Leonard, 100 Vt. 1, 134 A. 706; Sallba v. N. Y. C. R. R., 101 Vt. 56, 140 A. 491.

Mrs. Stevens was improved by the proponents and in direct examination testified to what was done by Mr. Campbell and Mr. O'Brien on the occasion of the mutilation of the document. The only facts shown by this examination were that the document was mutilated after the death of Mrs. Campbell, and how and by whom it was done. The contestants in cross-examination sought to show by her what was said by Mr. Campbell to O'Brien while the mutilation was going on. Against the objection and exception of the proponents the court permitted her to state that Mr. Campbell told O'Brien to destroy the document. In no sense did this answer tend to qualify, explain, or contradict anything she had said about the time or method of mutilation. It showed merely that O'Brien did what Campbell directed him to do, namely, mutilate the document—a fact that already had appeared.

But because the court, in its discretion, allowed this testimony to come in under such circumstances did not in itself, as the contestants argue, open the door to permit the witness to testify to all the statements made by Mr. Campbell to O'Brien. The record discloses that, had the further question been answered, the contestants would have shown by her that Mr. Campbell, in stopping the total destruction by O'Brien, expressed a wish to save the body of the document so that he could carry out some of the specific bequests Mrs. Campbell had made of numerous of her personal belongings. Had the answer been received, it would not have qualified, explained, or contradicted her direct examination. So in no sense was it cross-examination.

The contestants invoke the general rule that, where a part of a conversation is shown by a party, his opponent is entitled to show the whole and cite numerous cases to this point. An important qualification of this rule is the relation of the part offered to the part first introduced. It was said, Taylor, J., in Turner v. Howard, 91 Vt. 49, 53, 99 A. 236, 237: "It is only so much of the remainder as concerns the same subject, and is explanatory of the part first introduced that is receivable. 3 Wig. on Ev. § 2113. This fully accomplishes the purpose of the rule, which admits an otherwise inadmissible declaration as part of the same conversation only to give a complete understanding of the tenor and effect of the admissible part." The effect of the offered testimony was not to put a correct construction upon any conversation the proponents had introduced, but merely had the effect to supplement that which the contestants had themselves brought out. In no sense was it explanatory of the part first introduced so the argument, and the cases relied upon have no application here and are not to the point. Adams v. Cook, 91 Vt. 281, 286, 100 A. 42; Hendrickson v. International Harvester Co., 100 Vt. 161, 168, 135 A. 702.

The proponents offered an 11-page deposition of Sarah E. Phelps. The court struck out one short paragraph thereof, and upon admitting the balance counsel for contestants took this exception: "I object to that portion that is admitted, on the ground that it is incompetent and hearsay, and made by Mrs. Campbell at least approximately four years prior to her death."

Contestants, in their brief, call our attention to only one sentence of the admitted part as objectionable. Neither to this nor to any other part was specific objection made below. The objection relied upon was too general. In order for a party to save a question as to the admissibility of any part of a deposition, it is necessary that the part objected to be pointed out, and the ground of objection stated, that the court may know precisely what it is asked to rule upon. Hurlburt v. Hurlburt's Est., 63 Vt. 667, 22 A. 850; Webb v. Richardson, 42 Vt. 465.

O'Brien was improved as a witness for the contestants and, without objection, testified that he-tore the document in question at Mr. Campbell's request. Shortly thereafter counsel put this question: "Q. You say you tore that up because Mr. Campbell told you to, asked you to?" Objection was interposed that the witness had already answered that question, and the court called counsel's attention to the same fact. Whereupon counsel for contestants stated that he wanted to show why Mr. Campbell wanted the document back. Objection again being interposed, the question was excluded. No exception was asked for or noted. It was within the discretion of the trial court to decline to allow counsel to again ask the question that had just been answered. Mullin v. Flanders, 73 Vt. 95, 50 A. 813; State v. Meeban, 86 Vt. 246, 84 A. 862; Miller v. Pearce, 86 Vt. 322, 85 A. 620, 43 L. R. A. (N. S.) 332; Shores v. Simanton, 99 Vt. 191, 130 A. 697. And this is especially so when the excluded question is more a statement by counsel of what the witness has just said than it is a question, and is so framed as to call for a "yes" or "no" answer. Whereupon, without any question being put or pending, this took place at the bench: "By counsel for contestants: We offer to show that Mr. Campbell, in addition to asking Mr. O'Brien to destroy the copy, told him to hand it back to him; and further stated that he wanted to retain those portions and pages of the will giving certain pieces of jewelry and bricabrac to certain individuals, so that he might himself carry out some of her pet wishes in reference to the legacies." The offer was...