In re Chisholm's Will

• Decision Date: 09 October 1919
• Docket Number: No. 168.,168.
• Citation: 108 A. 393
• Court: Vermont Supreme Court
• Parties: In re CHISHOLM'S WILL.

108 A. 393

In re CHISHOLM'S WILL.

No. 168.

Supreme Court of Vermont. Bennington.

Oct. 9, 1919.

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

In the matter of William Chisholm's will. Proceedings to probate will contested by George Chisholm. Judgment sustaining will, and contestant excepts. Judgment affirmed.

Argued before WATSON, C. J., POWERS and TAYLOR, JJ., and FISH, Superior Judge.

Frank C. Archibald, of Manchester Center, and Robert E. Healy, of Bennington, for proponent.

James K. Batphelder, of Bennington, and C. H. Donahue, of Boston, Mass., for contestant.

POWERS, J. George Chisholm is contesting the will of his brother William, and brings up these exceptions from a judgment establishing the instrument propounded. Ho predicates his contest upon the alleged incapacity of the testator and the undue influence of Louise Chisholm, the widow of a deceased brother, John.

It appeared that the testator lived in the family of John and Louise at Ayer, Mass., for a number of years prior to John's death, which occurred in 1895. After this, and in 1899, William and Louise moved to Boudville in this state, and lived there together until the death of the former, which occurred on May 21, 1916. William was then over 77 years old. Louise was then 78.

The contestant testified that, in the fall of 1862, William and Louise came to the former's old home in Nova Scotia on a visit. And he offered to show in that connection that on that occasion he saw on the register of the McCulley House, a hotel where they stopped on their way to his father's an entry in William's handwriting as follows, "William Chisholm and wife, Boston," with one number of a room set opposite it. To this the proponent objected, and it was excluded, and the contestant excepted.

The ruling was without error. No foundation was laid for the receipt of secondary evidence, and parol evidence of the contents of the register was therefore inadmissible. Osborne v. Grand Trunk R. Co., 87 Vt. 104, 88 Atl. 512, Ann. Cas. 1916C, 74; State v. Alpert, 88 Vt. 191, 92 Atl. 32; Gilman Bros. v. Boolh, 91 Vt. 123, 99 Atl. 730.

Duncan Chisholm, another brother of the testator, was a witness for the contestant, who offered to show by him that Louise, in speaking of a former will, said in substance that William made a will while at Ayer, but she (Louise) would not have that will because it left the contestant too much. This offer was predicated upon two specified grounds: To show the mental feeling of Louise toward the contestant; and to show her confidence in her ability to influence the testator. What she thought about her ability to influence William and her confidence therein were entirely immaterial and the ground last stated merits no consideration. But if, as claimed, this evidence fairly and reasonably tended to show hostility on her part toward the contestant, entertained at or within a reasonable time before the date of the will in question, it might be admissible. It is to be noted that this statement referred to a will made more than 20 years before the will in question was executed. Of that will, all we know is that Louise was the principal legatee and that it carried some minor bequests to others. Whether the contestant was a legatee therein, and if so to what amount, does not appear. For aught that appears, the statement, if made, may have as well indicated a disposition toward fairness to the other relatives as hostility to the contestant. There was not enough shown to make the statement admissible' on the ground specified, and its exclusion was not error. In re...