In re Estate of Alonzo A. Martin

• Decision Date: 16 May 1918
• Parties: IN RE ESTATE OF ALONZO A. MARTIN
• Court: Vermont Supreme Court

104 A. 100

92 Vt. 362

IN RE ESTATE OF ALONZO A. MARTIN

Supreme Court of Vermont

May 16, 1918

January Term, 1918.

APPEAL FROM PROBATE. Trial by jury at the Special June Term, 1917 Windsor County, Stanton, J., presiding. Verdict for contestant. Proponent excepted. The opinion states the case.

Judgment reversed and cause remanded.

Davis & Davis and Pingree & Pingree for proponent.

Charles Batchelder, William Batchelder and Frank Plumley for contestant.

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

OPINION

POWERS

On January 26, 1916, Alonzo A. Martin executed an instrument purporting to be his last will and testament. The validity of this instrument is here in question, and the only ground of contest is that he was then of unsound mind and incompetent to make a will. The trial below was by jury and resulted in a verdict against the instrument. The case comes up on exceptions saved by the proponent.

Witnesses for the contestant were allowed, subject to the proponent's exception, to relate facts and observations covering an extended period prior to the execution of the instrument in question, and subsequent thereto down to Mr Martin's death, and thereon to predicate opinions that he was not of sound mind. We cannot say that such evidence was not material. The factum probandum, was, of course, his mental condition on January 26, 1916. But when the issue of testamentary capacity is raised, the inquiry is conducted under liberal rules of procedure (In re Esterbrook's Will, 83 Vt. 229, 79 A. 1), and it is competent, as bearing on this question, to show the person's mental condition at any reasonable time before or after the testamentary act. In re Wheelock's Will, 76 Vt. 235, 56 A. 1013. Just how wide a range is permissible in a given case depends upon the character of the alleged unsoundness and other circumstances, and rests largely in the discretion of the trial court. 3 Elliott Ev., § 2692. We are not convinced that too much latitude was here allowed.

One of these witnesses was E. D. Ainsworth, a subscribing witness to the will, and it is claimed by the proponent that the contestant was allowed to examine him under the rules governing a cross-examination, and it is insisted that this was error. The argument is that the law required the proponent to introduce this witness, and that such a witness is not vouched for by the party producing him; that there is no cross-examination of such a witness in the ordinary sense of the term; and that it was unfair and prejudicial to allow it in this case. It is plain from the record that the court treated the matter as a cross-examination, but it is equally plain that it allowed it to thus proceed as a matter of discretion. So if any wrong ground was suggested for the ruling, the ruling itself was right, and no error appears. Fairbanks v. Stowe, 83 Vt. 155, 74 A. 1006, 138 Am. St. Rep. 1074.

The contestant was allowed to take answers from some of the witnesses which were not in the line of strict cross-examination, and the proponent excepted. But no error is shown. It is not made manifest that the admission of this testimony in this way resulted in any surprise, or prejudice to the proponent's case, and it was therefore within the discretion of the court to allow it. Slack v. Bragg, 83 Vt. 404, 76 A. 148; State v. Pierce, 87 Vt. 144, 88 A. 740. The fact that in some respects this was to anticipate the contestant's case is of no consequence. In re Mason's Will, 82 Vt. 160, 72 A. 329.

The contestant was allowed, subject to exception, to ask leading and suggestive questions to certain witnesses. This, too, was within the discretion of the trial court. Berry v. Doolittle, 82 Vt. 471, 74 A. 97.

The opinion of the decedent's mental condition given by Mary Hope, the trained nurse who took care of him from February 15, 1916, to his death on March 6, of the same year, was not inadmissible. It is true that the witness had not previously known the decedent, and that he was then very weak and sick; but these facts only affected the weight of her testimony and not its admissibility. Foster's Exrs. v. Dickerson, 64 Vt. 233, 24 A. 253. Here, again, the law does not lay down a hard and fast rule, and the question whether the witness has had an adequate opportunity of observation, in circumstances calculated to result in an inference helpful to the jury, is largely one of administration, and within the discretion of the trial court. 3 Chamb. Ev., § 1912.

Mrs. Martin, the widow of the decedent and the real contestant, was a witness. In her direct examination, she was asked by her counsel if there came a time when it appeared to her that her husband became suspicious that she was trying to beat him in money matters. Subject to exception, she replied in substance that there did come such a time and that it was in 1915. The only point now made in support of this exception is that no foundation was laid by showing the particular facts from which this inference was drawn. A sufficient answer is, that the record does not show that such a foundation was not laid, and therefore we will assume that it was. Sargent v. Burton, 74 Vt. 24, 52 A. 72.

It appears that Gov. Pingree drew the will in question, and went to the decedent's residence for that purpose. He testified that while he was there, Mrs. Martin's conduct was so strenuous and the scene she made so stormy, that he asked for a room where he could have Mr. Martin alone to complete the business. When Mrs. Martin was on the stand, her counsel asked her if her conduct on that occasion was such that there was any reason for Gov. Pingree's asking for a separate room. To this the proponent objected; and subject to exception, the witness was allowed to answer that she might have been a little bit excited, but that she was not strenuous, nor loud, nor quarrelsome. The argument of the proponent assumes that the witness was allowed to express an opinion on the propriety of Gov. Pingree's action. But this is not what the witness did; she simply stated the facts as she claimed them to be. This is just what counsel then said they were willing she should do, and just what she could properly do.

Mrs. Martin was allowed to testify to a conversation had with her husband in the fall of 1897, which resulted in an arrangement whereby she took on the management of the business at Martinsville. To this the proponent excepted. The objection below was specific. It was that Mr. Martin being dead, the living party "shouldn't be allowed to come in here and swear contracts onto the dead one." The only point here made is that the statute does not allow one spouse to testify to a conversation with the other, and that the death of the latter does not affect the question. Here, then, is a new objection not made below. In these circumstances neither point is considered. Jewell v. Hoosac, etc. R. R. Co., 85 Vt. 64, 81 A. 238; Goslant v. Calais, 90 Vt. 114, 96 A. 751. Exactly the same situation exists regarding the conversation about the keys to the box of securities, and for the same reason the exception is overruled.

During Mrs. Martin's examination, her counsel asked her a question which was objected to. Thereupon, counsel explained his position in regard to the question, and the court ruled it out. Contestant's counsel then (apparently in good faith) made a further explanation of his purpose, but the ruling was adhered to. The proponent claimed an exception to this further explanation unless it was withdrawn. Counsel refused to withdraw it and an exception was allowed. The court then turned to the jury and cautioned them against trying the case upon statements by counsel, and admonished them to be guided only by the evidence admitted. The exception is not sustained. However it might have been if the record showed that counsel had attempted to get something improper before the jury by his statement to the court, or, however it might have been if the matter had not been adequately handled by the court, it must be held on the record that the remarks were not improper and that there was no obligation to withdraw them.

Clara Dole, a sister of Mrs. Martin, was a witness for the contestant. She gave testimony tending to show that formerly Mr. Martin had confidence in her business ability and intrusted certain business matters to her charge, but that from and after the winter of 1914-15, his opinion of and mental attitude toward her business ability materially changed. This evidence was properly admitted. It was the theory of the contestant, and her evidence tended to show that a decided change came over Mr. Martin at or about this time. That such a change is evidence of failing mentality is well recognized. The testimony of Mrs. Dole was confirmatory of this claim and admissible as a manifestation of the change referred to. This witness also testified that when she was at the Martin place, there was money in the purse. There is not enough shown by the record to make...