In re Cowdry's Will

Citation60 A. 141, 77 Vt. 359
Case DateMarch 09, 1905
CourtUnited States State Supreme Court of Vermont
60 A. 141
77 Vt. 359

In re COWDRY'S WILL.

Supreme Court of Vermont. Washington.

March 9, 1905.


Munson and Haselton, JJ., dissenting from paragraph 3.

Exceptions from Washington County Court; Stafford, Judge.

In the matter of the will of Almira E. Cowdry. On a trial by jury in the county court, the will was established, and contestants excepted. Reversed.

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

George W. Wing and Plumley & Plumley, for proponents. T. J. & E. H. Deavitt and Senter & Senter, for contestants.

ROWELL, C. J. Before the passage of No. 58, p. 41, Acts 1898, the statute provided for the appointment of guardians only of spendthrifts, insane persons, and certain absconding persons. Section 2760 mentions such guardians by name, and defines their authority and control. Section 7, V. S., provides that the words "insane persons" shall include every idiot, non compos, lunatic, and

60 A. 142

distracted person. A person who is adjudged a con compos, and placed under guardianship as such, is thereby rendered prima facie incapable of making a will while the adjudication remains in force. In re Wheelock's Will, 76 Vt. 235, 56 Atl. 1013. The act of 1898 was passed as an addition to V. S. 2760, and provides that guardians of persons who have been adjudged mentally incapable of taking care of themselves or their property by the probate court appointing them shall, until they are discharged, have the possession and management of the estates of their wards, and the care and custody of their persons, etc. It is apparent that it was the purpose of this amendment to enlarge the scope of the statute, and to add thereto a new class of persons over whom guardians could be appointed; and such must be taken to be its effect, for it can have no other, as it is not to be declared nugatory if it can be held effective. This amendment was undoubtedly prompted by the well-known fact that many persons, and especially old persons, were willing to have a guardian, but were not willing to submit to an adjudication that would class them as insane, as was the case with this testatrix. Hence the amendment recognizes a difference between a non compos, and his class, and a person merely lacking mental capacity to take care of himself or his property. The mind of a non compos is to be taken prima facie as insane and nondisposing, while the mental incapacity of the amendment does not imply such a mind, but may well be taken prima facie to consist with a sound and disposing mind and memory. This case is a good illustration of the utility of the amendment. The testatrix was very old and infirm, and had long been a town charge. All at once and unexpectedly she fell heir to $6,000. No wonder she did not know what to do with it, nor how to take care of it. But this does not make against her mental soundness, but only against her mental ability to meet the requirements of her new condition, and hence the necessity of a guardian. We hold, therefore, that the adjudication of her mental incapacity to take care of herself and her property, and the appointment of a guardian thereunder, did not render her prima facie mentally incapable of making her will.

The executor and proponent of the will is the principal beneficiary under it, and was guardian of the testatrix before and at the time the will was made. The contestants requested a charge that the law presumes undue influence when a ward makes a will in favor of her guardian, and views the act with suspicion. The court refused, but charged instead that the burden was on the guardian to show no undue influence on his part. This was not...

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24 practice notes
  • Woodhouse v. Woodhouse
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 7, 1925
    ...of the defendants that the presumption indulged in their favor should be weighed as evidence on the authority of the Cowdry Will Case, 77 Vt. 359, 60 A. 141, must be rejected as unsound. The function of this presumption is locative and not probative, as to which see Sheldon v. Wright, 80 Vt......
  • Wyckoff v. Mutual Life Ins. Co.
    • United States
    • Supreme Court of Oregon
    • October 25, 1943
    ...862 (1910); but see Hobart-Farrell Plumbing & Heating Company v. Klayman, 302 Mass. 508, 19 N.E. (2d) 805 (1939); In re Cowdry's Will, 77 Vt. 359, 60 A. 141, 3 Ann. Cas. 70 (1904); Hockstedler v. Dubuque and Sioux City Railway Co., 88 Iowa 236, 55 N.W. 74 (1893); Cleveland, Cincinnati, ......
  • Tyrrell v. Prudential Ins. Co. of Am., No. 701.
    • United States
    • May 4, 1937
    ...Co., 315 Pa. 497, 173 A. 644, 649, 95 A.L.R. 869, 875. This court has not been free from offense. It was expected when In re Cowdry's Will, 77 Vt. 359, 60 A. 141, 3 Ann.Cas. 70, was decided, that the troublesome question as to the character and effect of presumptions was set at rest. The wr......
  • Waddy v. Grimes
    • United States
    • Virginia Supreme Court of Virginia
    • June 23, 1930
    ...174 Pa. 373, 34 A. 603; Collins v. Long, 95 Or. 63, 186 P. 1038, 8 A. L. R. 1370; Williams v. Robinson, 39 Vt. 267; In re Cowdry's Will, 77 Vt. 359, 60 A. 141, 31 Ann. Cas. 70. But it is contended that even if the deed to Annie Waddy was executed when Fielding Grimes was in fact mentally co......
  • Request a trial to view additional results
24 cases
  • Woodhouse v. Woodhouse
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 7, 1925
    ...of the defendants that the presumption indulged in their favor should be weighed as evidence on the authority of the Cowdry Will Case, 77 Vt. 359, 60 A. 141, must be rejected as unsound. The function of this presumption is locative and not probative, as to which see Sheldon v. Wright, 80 Vt......
  • Wyckoff v. Mutual Life Ins. Co.
    • United States
    • Supreme Court of Oregon
    • October 25, 1943
    ...862 (1910); but see Hobart-Farrell Plumbing & Heating Company v. Klayman, 302 Mass. 508, 19 N.E. (2d) 805 (1939); In re Cowdry's Will, 77 Vt. 359, 60 A. 141, 3 Ann. Cas. 70 (1904); Hockstedler v. Dubuque and Sioux City Railway Co., 88 Iowa 236, 55 N.W. 74 (1893); Cleveland, Cincinnati, ......
  • Tyrrell v. Prudential Ins. Co. of Am., No. 701.
    • United States
    • May 4, 1937
    ...Co., 315 Pa. 497, 173 A. 644, 649, 95 A.L.R. 869, 875. This court has not been free from offense. It was expected when In re Cowdry's Will, 77 Vt. 359, 60 A. 141, 3 Ann.Cas. 70, was decided, that the troublesome question as to the character and effect of presumptions was set at rest. The wr......
  • Waddy v. Grimes
    • United States
    • Virginia Supreme Court of Virginia
    • June 23, 1930
    ...174 Pa. 373, 34 A. 603; Collins v. Long, 95 Or. 63, 186 P. 1038, 8 A. L. R. 1370; Williams v. Robinson, 39 Vt. 267; In re Cowdry's Will, 77 Vt. 359, 60 A. 141, 31 Ann. Cas. 70. But it is contended that even if the deed to Annie Waddy was executed when Fielding Grimes was in fact mentally co......
  • Request a trial to view additional results

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