In re Campbell's Will

• Decision Date: 05 October 1927
• Citation: 138 A. 725
• Parties: In re CAMPBELL'S WILL.
• Court: Vermont Supreme Court

138 A. 725

In re CAMPBELL'S WILL.

Supreme Court of Vermont. Rutland.

Oct. 5, 1927.

Exceptions from Rutland County Court; Harrie B. Chase, Judge.

Proceeding to establish a certain document as the last will of Mary W. Campbell. From a decree of the county court affirming a decree of the probate court disallowing the instrument, proponents except. Reversed and remanded.

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

Webber & Leamy, of Rutland, for proponents.

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

POWERS, J. This is an attempt to establish a certain document as the last will and testament of Mary W. Campbell, who died at Rutland on January 24, 1926, leaving a surviving husband, William E. Campbell, and certain heirs at law. The instrument was disallowed in the probate court and in the county court on appeal. The proponents bring the case here on exceptions. The instrument in question purports to be a will, and is in the usual form of such documents, but it is unsigned and unwitnessed, and wholly wanting in the formalities of due execution. It is the theory of the proponents that the two or more sheets containing these were removed and destroyed after Mrs. Campbell's decease. The contestants contend that the instrument propounded is but a copy of a will destroyed by Mrs. Campbell some years before her death. There was evidence tending to show that a few hours before her death Mrs. Campbell told a Mrs. Stevens, who was staying there, that this instrument was in a certain tin trunk, and that she wanted it destroyed; this Mrs. Stevens agreed to see done; that about a week later, at the request of Mr. Campbell, Mrs. Stevens brought out the instrument, and one O'Brien who had been called in, tore out the two sheets at the back of the instrument and they were destroyed. The stubs of these sheets appear on the instrument. After the two sheets were torn out, the instrument was put back in the tin trunk, and that put away. Mrs. Stevens was improved as a witness by the proponents. By her they showed something of the kind of woman Mrs. Campbell was, and that she (the witness) learned that the instrument was in the trunk from Mrs. Campbell. This is all that the proponents brought out regarding the instrument. On cross-examination the contestants were allowed to show all that Mrs. Campbell said about the instrument at that time; and they drew from the witness the statement that Mrs. Campbell said that she wanted O'Brien to destroy her will that was in his possession, and she wanted her husband to destroy the cony that was in the tin trunk. To the ruling that this was proper cross-examination, the proponents excepted. The fact that the proponents had, in effect, put in evidence a part of a statement of Mrs. Campbell, did not, of itself, entitle the contestants to put in all of that statement. The latter could give in evidence whatever Mrs. Campbell then said that tended to qualify, explain, or contradict what Mrs. Stevens had testified to, but no more. Turner v. Howard, 91 Vt. 49. St. 09 A. 236; Adams v. Cook. 91 Vt. 281. 286. 100 A. 42. To this extent cross-examination goes.

While it is sometimes difficult to determine what is within and what is without the scope of the direct examination, it can safely be said that, the credibility of the witness aside, only that which tends to limit, explain, or refute the statements of the direct examination or to modify the inferences deducible therefrom comes within the range of proper cross-examination. State v. Kelsie, 93 Vt. 450, 453, 108 A. 391. Thus far opposing counsel may go as a matter of right. Beyond this the court cannot properly allow him to go without making the witness his own. The only fact established for the proponents by Mrs. Stevens was the place where the instrument was deposited. Anything that Mrs. Campbell then said relative to that would be cross-examination. But her characterization of the paper as a copy of her will and wanting it destroyed had no tendency to qualify or explain her statement that it was in the tin trunk. In giving this testimony, Mrs. Stevens was the contestants' witness. It had no tendency to discredit the witness or impair the probative force of the testimony given by her. If this was all there was to it, the error would be harmless, as it was within the court's discretion to allow the evidence to come in at that time, as the proponents were not thereby prejudiced. But the importance of all this lies in its effect, if any, upon the proponents' right to impeach the witness by showing that she had made statements inconsistent therewith on previous occasions, as the proponents offered to show, but were not allowed to.

It is a familiar rule that a party is not allowed to impeach his own witness. Cox v. Eayres, 55 Vt. 24, 28, 45 Am. Rep. 583. This rule is subject to some exceptions not now applicable. But here is a witness who was improved by both sides. She was as much the witness of one as the other. How does the rule apply in such a case? As is shown by Town of Barnard v. Henry, 25 Vt. 289, 294, and Fairchild v. Bascomb, 35 Vt. 398, 417, having made the witness their own, the contestants could not give in evidence impeaching testimony regarding the facts elicited from her.

But these cases are not authority for the proposition that they were estopped from proving prior or subsequent statements of the witness inconsistent with the evidence she gave when testifying as proponents' witness. On that question the decisions are in conflict. Some say that in such circumstances the one testifying is the witness of each party only to the extent of the testimony elicited by that party, and that either party may discredit him by showing inconsistent statements as to matters testified to in favor of the other party. Hall v. Manson, 99 Iowa. 698, 68 N. W. 922, 34 L. R. A. 207. Others hold that, in the circumstances named, no impeachment by either party is permissible.

This court is committed to the latter rule. In Thornton's Ex'rs v. Thornton's Heirs, 39 Vt. 122, 151, after supposing a situation essentially like the one here, the court said:

"The witness remains the witness of the party who produced him, so far that he may not be impeached by that party"—citing Fenton v. Hughes, 7 Ves. Jr. 287, and Ellicott v. Pearl, 10 Pet. 412, 9 L. Ed. 475.

In the former of these, in speaking to this point, the Lord Chancellor said:

"As to that, at the Old Bailey the judges would not permit that to be done, even upon examination in reply, holding that you give him credit by calling him; and they would not permit you to breathe a suspicion against him, if you did not like his cross-examination. That, I was informed, had been settled upon conference by all the judges."

In the latter, one McNeal had been improved as a witness by both parties, and the party producing him attempted to discredit him as to matters brought out by his adversary; the court, speaking through Mr. Justice Story, said:

"But, in truth, the evidence was offered to discredit, in part, his present testimony; and certainly the demandants were...