In re Edward H. Everett's Will

• Decision Date: 02 May 1933
• Parties: IN RE EDWARD H. EVERETT'S WILL
• Court: Vermont Supreme Court

166 A. 827

105 Vt. 291

IN RE EDWARD H. EVERETT'S WILL

Supreme Court of Vermont

May 2, 1933

Special Term at Rutland, November, 1932.

Wills---Liberality in Admission of Evidence on Contest of Will for Undue Influence---What Must Be Shown To Avoid Will on Ground of Undue Influence---Remoteness of Evidence Tending To Show Undue Influence as Matter of Discretion of Trial Court---Competency of Evidence as to Friendly Relations of Contestants and Testator Prior to Second Marriage and Change Thereafter on Part of Testator on Question of Undue Influence---Incompetency of Evidence of Trips of Testator with Woman Subsequently Becoming His Second Wife on Question of Her Subsequent Undue Influence---Admission of Incompetent Evidence Harmless Where Evidence of Same Nature Previously Admitted without Objection---Waiver of Exceptions by Failure To Brief---Inadmissibility of Statements on Question of Undue Influence Which Are as Indicative of Normal as Abnormal Mind---Necessity of Great Caution in Receiving Statements in Conversations of Testator To Show Undue Influence---Hearsay---Inadmissibility of Evidence Tending To Show Dismissal of Employee for Wastefulness Disclosed by Brother of Testator's Wife, on Question of Her Undue Influence---Admissibility of Testator's Statements to Members of Family and Friends after Marriage to Second Wife as to Feelings toward Her and Family and Concerning Provisions Made for Her and Her Daughters as Showing State of Decedent's Mind---Harmless Error---Admissibility of Statements of Testator Three Months Prior to Second Marriage as to Contemplated Division of Property---Inadequate Briefing---Admissibility of Antenuptial Agreements To Show Interest or Motive of Testator's Second Wife on Question of Undue Influence---Statements of Testator's Wife, in Conversation with Witness in Presence of Testator Regarding His Withdrawing from Building Project, as to Another Company Trying To Steal Money from Plaintiff, although Inadmissible Held Harmless [105 Vt. 292] ---Evidence---Privileged Communications---Admissibility of Letters from Testator to Former Attorney Relating to Changes in Will on Question of Undue Influence in Making Subsequent Will---Briefing Amounting Merely to Index as Inadequate---"Undue Influence"---Ways in Which Undue Influence May be Exerted---Admissibility of Circumstantial Evidence To Prove Undue Influence---Consideration of Whether Testamentary Disposition Natural or Unnatural---Opportunity Alone Insufficient To Prove Undue Influence---Influence Not Undue Unless Carried to Point of Destroying Testator's Free Agency---Jury Question---New Trial---Improper Argument of Counsel---Presumption That Court Considered All Evidence Bearing on Issue Presented by Motion for New Trial, and Made Proper Use Thereof---Implied Ruling of Trial Court by Overruling Motion for New Trial on Ground of Improper Argument of Counsel---Discretion of Trial Court in Ruling on Such Motion---When Evidence of Illicit Relations between Parties Prior to Marriage Inadmissible on Question of Wife's Undue Influence---Effect of Objection to Conversation as Whole When Part Thereof Is Admissible.

1. Where lack of testamentary capacity or undue influence are grounds of contest of will, few artificial rules are applied and, in view of many factors entering into matter investigation must be befittingly untrammeled, and inquiries for most part be carried on in accordance with liberal rules of procedure.

2. Existence of undue influence or deception involves incidentally consideration of testator's incapacity to resist pressure and his susceptibility to deceit, whether in general or by particular person, and requires consideration of many circumstances.

3. In order to avoid will on ground of undue influence, latter must be such as to destroy free agency of testator at time and in very act of making instrument, but need not be directly exerted at moment instrument is executed, or within any particular time prior thereto, although, whenever exerted, it must still be operative in testator's mind in very act of executing instrument.

4. When undue influence is issue, questions of remoteness are, to large extent, in discretion of trial court.

5. Evidence which tends to show that beneficiary acquired control over testator's mind before will was made, and retained such control beyond period at which will was executed, is admissible, even if relating to remote period of time.

6. Where testator's daughters by former marriage contested will on grounds of undue influence of second wife and claimed, and their evidence tended to show, harmonious and affectionate relations with their father until his second marriage, and marked change in attitude shortly thereafter resulting in his loss of interest in them, distrust of them, and on some occasions expressed feeling of resentment and ill-will toward them, continuing down to time instrument in question was executed, it was competent for contestants to show, by any legitimate evidence, decedent's state of mind toward them, and toward his wife as far as material to issue involved, during entire time covered by their evidence.

7. Letters and telegrams which passed between testator and his daughter and her husband prior to father's second marriage, held competent to show decedent's state of mind toward such daughter and her husband, on issue of undue influence upon testator by his second wife.

8. Letters between testator's daughters by former marriage, parts of which tended to show friendly and harmonious relations between them, held admissible on redirect examination of husband of one of daughters, where his cross-examination had proceeded upon theory that there were strained relations between them, and evidence was sufficient to warrant such inference, over exception made to admission of letters as whole, and not to particular part, or parts of them, which had no tendency to prove harmonious relations between parties and were prejudicial.

9. Evidence, offered to show state of mind of decedent, that testator and woman who subsequently became his second wife, before their marriage had on two different occasions occupied connecting rooms at hotel for which decedent paid, and hotel records, and rough sketch showing location of rooms, held incompetent and highly prejudicial, in contest of will on ground of undue influence by second wife.

10. Admission of incompetent and prejudicial evidence held not to require reversal, where practically same evidence had previously been given by other witnesses, without objection.

11. Evidence of chauffeur that he took testator and woman who subsequently became latter's second wife, on automobile trip, during which testator and woman went out of driver's sight across field to eat lunch which they had brought with them, and that just at dusk, they again left automobile and went up little hill out of witness' sight and remained there about a half hour, offered to show decedent's state of mind and relation of parties, held incompetent in contest of will on ground of undue influence by second wife.

12. Question raised by exceptions to admission of evidence which are not briefed will not be considered by Supreme Court.

13. Statements made to witness by testator before marriage to second wife, indicating that he thought she had grounds for scandal which he wished to avoid; that he loved her, or thought he did; and that he could see no reason why he should not marry her, held inadmissible to show undue influence of second wife, being irrelevant and prejudicial, as what he said under circumstances disclosed, was as indicative of normal as of abnormal mind.

14. On issue of undue influence, evidence of conversation with deceased person, offered to show state of mind of such person at particular time, should be received with great caution, and only such parts thereof should be admitted as are necessary to intelligent understanding of what was said by deceased.

15. Statement of testator to long-time friend and employee, that brother of testator's second wife had said he did not like employee's services, and that testator was going to ask employee to go back to another state, held incompetent on question of wife's undue influence, and what wife's brother told testator, inadmissible because hearsay.

16. Statement to witness by testator that reason for latter's sending back long-time friend and employee to another state, was because he was wasteful, and that this wasteful condition had been revealed to testator by his wife's brother, offered to show state of mind of decedent toward his wife and her brother, held inadmissible on question of wife's undue influence.

17. On issue of undue influence of testator's second wife, statements of testator, offered for purpose of showing his then state of mind and then state of affections for two daughters by former marriage, made in hotel in presence of one of such daughters and her husband and of witness and several other persons, to effect that he had called them together to tell them that brother of testator's second wife had been exonerated from a criminal charge; that he wanted to serve notice that he was going to protect his family and members of his wife's family from any attack from any source; and that he had arranged to make trust provision for second wife's daughters and also additional provisions for his wife, held admissible.

18. Testimony as to statements of testator, made shortly before marriage to second wife, with reference to her, that she was true as steel and was going to share with him the great sorrow of his life, the death of his first wife, admitted as bearing on testator's state of mind, subject to exception that it was too remote and had no relation to making will which contestants claimed was under undue...