In re Estate of Joseph D. Clogston v. Glennie

• Decision Date: 13 January 1919
• Parties: IN RE ESTATE OF JOSEPH D. CLOGSTON, ROSE GLENNIE, APPELLANT
• Court: Vermont Supreme Court

106 A. 594

93 Vt. 46

IN RE ESTATE OF JOSEPH D. CLOGSTON, ROSE GLENNIE, APPELLANT

Supreme Court of Vermont

January 13, 1919

May Term, 1918.

APPEAL from a decree of probate court disallowing an instrument as the last will and testament of Joseph D. Clogston. Pleas defective execution, incapacity and undue influence. Trial by jury at the September Term, 1917, Washington County, Slack J., presiding. Verdict and judgment for the contestants. The proponents excepted. The opinion states the case.

Judgment reversed, and cause remanded.

Theriault & Hunt and John W. Gordon for the proponents.

F L. Laird and H. C. Shurtleff for the contestants.

Present: WATSON, C. J., HASELTON, POWERS, TAYLOR, and MILES, JJ.

OPINION

WATSON

The proponents, in their opening case, called as a witness one A. C. Theriault, the attorney who drew the proposed will. His direct examination was confined entirely to what occurred in connection with, and at the time of, the execution of the will, his acquaintance with the testator, the frequency of his meeting and observing him in the street, and his participation in the transaction when the testator deeded his real estate to the proponent Glennie. He was not inquired of and did not testify respecting anything that occurred subsequent to the execution of the will, except as to meeting and observing the testator in the street, nor respecting the proceedings in regard to the appointment of a guardian over the testator, but did testify that in his opinion, based on his testimony, the testator, at the time the will was executed, was of sound mind. The hearing in such proceedings was on October 15, 1915, about a month after the execution of the will. During the trial up to this time, no testimony had been received or offered with respect to those proceedings. Subject to exception on the ground of its being an improper way to introduce evidence of the guardianship, the witness in cross-examination was permitted to testify that about a month after the time when the will was executed the testator appeared in probate court and a guardian was appointed over him. The exceptions state that this question was preliminary to an inquiry concerning the speech and conversation of the testator on that occasion. However this may have been, the force of the exception is not easily seen in view of the fact that later the proponents introduced documentary evidence showing such appointment was made at that time.

Being further cross-examined, this witness was asked why he did not witness the will. Subject to exception on the ground of immateriality, he answered that he did not know of ever drawing a will where he witnessed it himself. He was then asked if it was not a fact that he did not witness the will in question because he wanted to reserve himself as a witness to testify to all the transactions surrounding it. Subject to exception on the ground of vagueness of the question, the witness answered that he never had any thoughts of it; that at the time of drawing the will he did not contemplate any trouble about it. The import of the question was plain enough, and consequently the exception saved has no force.

It appeared that proponent Glennie had two unmarried sons and a daughter who lived with her at the Clogston house where she was taking care of the testator, both before and after the execution of the will; that they were material the relations existing between the testator and this proponent, that they, as a part of the family, had in a measure cared for the testator; that the sons had shaved him, and the three had assisted him in many ways, and had associated with him in a social and family way during the time. The sons were not present at the trial, and for the purpose of explaining their absence a witness was asked concerning their whereabouts, and answered: "In France. Q. In France, they belong to the army, what is that? Ans. Yes." Whereupon the court ruled, subject to exception, that the fact that they belonged to the army be stricken out. We may assume this to have been an erroneous ruling, and yet it is not believable that the proponents were harmed by it for the fact that the boys were in France remained in evidence.

It appeared that, after the contestant Elwin Clogston was appointed guardian of the testator, he employed proponent Glennie to remain at the testator's house and take care of him, which she did until his decease. Mrs. Glennie and her daughter testified that Elwin, after his appointment as such guardian, choked the testator so that his throat was injured; that the skin on his neck was discolored, and ever afterwards in eating and swallowing he had difficulty with his throat. In cross-examination Mrs. Glennie was asked, subject to exception as not in proper cross-examination, why she did not go to the probate judge about the choking, and ask that Elwin be removed as guardian and some suitable person be appointed in his place. She answered, "Because I did not think it would do any good." The witness had not testified in direct examination as to why she did not go to the probate court with the matter. It might fairly be argued that if her testimony touching such choking be true the most natural thing for her to have done, was to make complaint to the probate court, to the end that the guardian be removed and a new one appointed who would treat the testator kindly and gently as his age and physical condition required, and that her failure to make such complaint tended to discredit her testimony as to what took place. "Declarations or acts or omissions to speak or to act when it would have been natural to do so if the fact were as testified to, may be shown by way of contradiction or impeachment of the testimony of a witness, when they fairly tend to control or qualify his testimony." Foster v. Worthing, 146 Mass. 607, 16 N.E. 572. And the witness, being a party to the suit, could be cross-examined by the adverse party on any subject to the controversy whether she had testified in chief on the same subject or not. Swerdferger v. Hopkins, 67 Vt. 136, 31 A. 153.

The contestant called as a witness one Fannie B. Whitcomb who testified, among other things, that she never saw Elwin misuse his father, or abuse him. This evidence was admitted subject to the exception of being a characterization and conclusion. The contestant claimed that the proposed will was an unnatural one; that giving part of his property to proponent Glennie, as was attempted by the will, was contrary to the course dictated by natural affection, had the testator in mind the natural objects of his bounty. In support of this claim the contestant introduced evidence tending to show that great family affection existed between him and his father. On the other hand, the evidence of the proponents tended to show the contrary to be true; that the father thought Elwin was trying to get control of his property, and that Elwin was unkind to and used personal violence toward his father; that both of the latter's sons had neglected to care for him properly; that proponent Glennie and her family gave the testator care and comfort. The proponents claimed that in these circumstances the will was a natural and beneficial disposition by the testator of his estate, having in mind his own comfort and welfare. The contestant and his brother were men of mature years, having homes of their own at places distant from the testator's home. The testator's household for some months before the making of the will and until his death comprised himself, the proponent Glennie, and her sons and daughters.

Whether the will was an unnatural disposition of the testator's property was for the jury to say on the evidence showing the circumstances prior to, and at the time of, its execution including the attention and treatment given him by his sons and the effect the same had, or was calculated to have, on his mind and feelings toward them, also including the relations existing between the testator and Mrs. Glennie, and the effect the care and treatment given him by her had, or was calculated to have, on his mind and feelings toward her. Foster's Exrs. v. Dickerson, 64 Vt. 233, 24 A. 253; In re Barney's Will, 71 Vt. 217, 44 A. 75. However the jury might view the will in this respect, in the circumstances it had a bearing on the issues of mental capacity and undue influence. Denny v. Pinney's Heirs, 60 Vt. 524, 12 A. 108. It was therefore important for the contestant to show that he did not illtreat his father, if such be the fact. The competency of the witness was not challenged and, nothing appearing of record to the contrary, it is assumed, in support of the ruling, that she stated, so far as was practicable, the facts and circumstances on which her opinion or conclusion was based. We think the question here presented is governed, not by the general rule, but by the exception thereto stated by Judge Peck in Bates v. Sharon, 45 Vt. 474, and reiterated in State v. Marsh, 70 Vt. 288, 40 A. 836, as being well stated: "Where the facts are of such a character as to be incapable of being presented with their proper force to any one but the observer himself, so as to enable the triers to draw a correct or intelligent conclusion from them without the aid of the judgment or opinion of the witness who had the benefit of personal observation, he is allowed, to a certain extent, to add his conclusion, judgment, or opinion." Substantially the same legal question was ruled in the Marsh case. There it was held not error to permit a witness to state, when asked what he observed in respect to the conduct of the respondents toward each other on a certain occasion, that he "observed they were very intimate." And in M'Kee v. Nelson, 4 Cow. 355, 15 Am. Dec. 384, a breach of promise...