In re Effie E. P. Wells' Will

• Decision Date: 03 May 1921
• Citation: 113 A. 822,95 Vt. 16
• Parties: IN RE EFFIE E. P. WELLS' WILL
• Court: Vermont Supreme Court

113 A. 822

95 Vt. 16

IN RE EFFIE E. P. WELLS' WILL

Supreme Court of Vermont

May 3, 1921

October Term, 1920.

APPEAL from the probate court for the District of Chittenden on allowance of the will of Effie E. P. Wells, contested on the grounds of lack of testamentary capacity and undue influence. Trial by jury at the March Term, 1920, Chittenden County Fish, J., presiding. Verdict for proponents sustaining the will. Judgment on the verdict. The contestants excepted. The opinion states the case.

Judgment affirmed, to be certified to the probate court.

A L. Sherman, V. A. Bullard, and H. A. Cushing for the contestants.

Charles H. Darling, John G. Sargent, and Guy M. Page for the proponents.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

TAYLOR

The cause is an appeal from the decree admitting to probate an instrument purporting to be the last will and testament of Effie E. P. Wells, late of Burlington. The grounds of the appeal were lack of testamentary capacity and undue influence. The trial in county court was by jury, resulting in a verdict and judgment sustaining the will. The contestants rely upon only fifteen of the many exceptions taken during the trial.

Edward Wells, husband of the testatrix, died in February, 1907, leaving a will, and survived, as heirs at law, by his widow and a daughter by a former marriage, Anna Wells Sykes, wife of James G. Sykes. His two wives were half-sisters, so Mrs. Sykes is a niece as well as a stepdaughter of Effie E. P. Wells. Hannah P. Wells is a half-sister of the testatrix and the widow of Charles Wells, a deceased brother of Edward. Effie E. P. Wells deceased October 19, 1919, at the age of 66 years, after an illness of six days of pneumonia. The contestants are her only heirs at law. Her will was holographic, executed October 4, 1917. The largest part of the testatrix' property came to her by the will of her husband. Mr. Wells left a large estate, the bulk of which was disposed of under his will in the following manner: The widow took one-third in fee and the remaining two-thirds was constituted a trust fund with Mrs. Sykes and her children as beneficiaries. Henry L. Ward, one of the proponents of the will in controversy, with others (brothers of Edward Wells) was a trustee of this fund for some eight years, resigning the trust in September, 1916, after Mrs. Sykes became dissatisfied with his services, as will later appear. He is the residuary legatee under the will of Mrs. Wells, and the contestants claim unduly influenced its making. Mr. Wells was for many years president of the Burlington Trust Company, during which time Mr. Ward was successively a clerk, assistant treasurer, and treasurer of the Trust Company. Some time after Mr. Wells' death he became its president.

The business, and securities of the trust fund were kept by the trustees at the banking rooms of the Burlington Trust Company, and Mr. Ward had the active management of the trust. The contestants showed that about the last of November, 1913, a bond of the Commonwealth of Massachusetts of $ 250,000, registered in the name of the trustees, and part of the trust estate, was lost. Mr. Ward at once assumed all responsibility for the loss, and took steps for the restoration to the assets of the estate of a duplicate bond. He procured such duplicate to be issued by the Commonwealth and delivered to the trustees in November, 1915, without expense to the estate. On hearing of the loss of the bond Mrs. Sykes consulted counsel and undertook to ascertain the facts and protect her interests. An examination of the books and accounts of the trust estate was made by an audit company soon after the bond was restored. On the basis of the company's reports steps were taken by counsel employed by Mrs. Sykes to secure Mr. Ward's resignation as trustee, and the suggestion was made that if refused steps would be taken looking to his removal. Mr. Ward signed a resignation April 27, 1916, which was held in escrow. He finally filed a resignation in September, 1916. Mr. Ward promptly informed the testatrix of the request for his resignation and showed her the request and the reports of the audit company. During the weeks just prior to April 27, 1916, he was in frequent correspondence with her on the subject and occasionally saw her at her residence. In the troubles and controversies over the lost bond and the question of Mr. Ward's resignation the testatrix sided with Mr. Ward, and emphatically expressed to Mrs. Sykes her disapproval of the course being taken.

October 25, 1916, the testatrix sent a check of ten dollars to Mrs. Sykes' daughter Martha, who was then away from home at school, with a letter telling her to use it for something she wanted for her room. On November 1, 1916, Martha wrote the testatrix the following letter: "Dear Grandma:

"I just received word yesterday saying that I could not keep the money you sent me and that I must send it back. I am so sorry and thank you so much all the same for sending it and for thinking about me. As I had already cashed the cheque I am sending back a bill which you will find enclosed. The breakfast bell has rung so I have no time for more. I am so sorry. Love to all. "Your loving granddaughter, "Martha."

On November 2, 1916, the testatrix replied:

"My dear Martha:

"Your note with the money came this morning. I am very sorry I have caused you any trouble, never thought but it would be all right. I had sent you a birthday gift, so suppose I cannot send you or Elizabeth a Xmas gift, and not finish giving you the spoons I had started in with. I love you dear and always have and please do not forget your grandmother. Think of me once in a while and the good times we have had. The memory of the times we have had together cannot be taken from us. Nora often speaks of you both, as many of your friends do. I hope dear you will keep well and enjoy your school. Please love me and not forget us here. Sometime you will understand. "Your loving grandmother."

This letter came to the attention of Mrs. Sykes soon after it was written. No communication passed between the testatrix and Mrs. Sykes or her daughter subsequent to these letters. The evidence tended to show that the grandchildren never visited the testatrix after the check episode, although they had previously visited her a portion of each summer, save one when infantile paralysis was prevalent in Burlington.

Mrs. Sykes receives nothing under the terms of the will. Hannah P. Wells, the other contestant, receives five thousand dollars, and each of her four children a like sum. Provision is made for Mrs. Sykes' daughters, Martha and Elizabeth, by trust funds of thirty thousand dollars each. The only provision of this trust that need be noticed is the provision that if both die before reaching the age of forty-five years leaving no issue, both funds are to revert and become part of the residuary estate.

The first exception briefed was taken to the admission of a letter written October 30, 1919, by Mrs. Sykes to one Margaret Huston in reply to a letter of condolence on the death of the testatrix, admitted against the contestants' objection that the evidence was incompetent, immaterial, written some time after the death of Mrs. Wells, never could have been called to her attention, and that it contains no admission which in any way tends to inpeach the testimony given by Mrs. Sykes. As a witness in her own behalf Mrs. Sykes had testified in direct examination that from her earliest recollection until the time she received a letter from her stepmother about February 28, 1916, which was in evidence, the relations between herself and the testatrix had always been of the pleasantest; that they were devoted to each other, and there had not, to her knowledge, been any interruption of such relations. The portion of the letter upon which the claim of its admissibility was based is as follows: "I do not know if either of you knew it but she has not spoken or written to me in a number of years--ever since Mr. Ward lost a very valuable bond of mine and in loyalty to my father and trying to protect my children's property I made him make good. It was purely a business matter but she took sides with him against me and she has--by her will--cut me off from my home and the property but practically left my children out too--giving everything except a few bequests to Mr. Ward--house and all. You can imagine how this hurts me--for it has been very hard all these years to be so misjudged--when it was all a business matter and had to be settled in a business way. I went to her in her illness with forgiveness and love in my heart and all this has been almost more than I can bear. I can never forget her loving care for me but every year since father's death--it has been harder and harder as she has shown me so clearly that he love for me was not what I thought." That the letter was admissible as tending to contradict Mrs. Sykes on a matter of vital importance is at once manifest. Besides it was an admission on her part respecting the relations between her and the testatrix which was a material issue in the case. The objection made for the first time in this Court that it was error to receive this evidence because its application was not limited to Mrs. Sykes as a contestant in any event comes too late to avail. In re Estate of Martin, 92 Vt. 362, 367, 104 A. 100.

Mrs Ward, wife of the proponent Ward, was being examined as a witness by proponents' counsel. After she had been asked to tell what the testatrix' manifestations as to feelings toward her were--whether affectionate or otherwise--and had answered "affectionate", it was objected that it was a matter of interpretation, counsel adding, "She can tell what was done that the...