In re Esterbrook's Estate

• Citation: 83 Vt. 229, 75 A. 1
• Case Date: January 20, 1910
• Court: United States State Supreme Court of Vermont

75 A. 1
83 Vt. 229

In re ESTERBROOK'S ESTATE.
CHILDS et al.
v.
SHUMWAY.

Supreme Court of Vermont. Brattleboro.

Jan. 20, 1910.

75 A. 1

75 A. 2

[Copyrighted material omitted.]

75 A. 3

Exceptions from Windham County Court; F. M. Butler, Judge.

Probate appeal, in the matter of Nancy Eslerbrook's estate, by Rollin S. Childs, administrator, and others, contestants; W. A. Shumway, special administrator, being the other party. On appeal there was verdict and judgment for proponents, and contestants bring exceptions. Affirmed.

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

R. C. Bacon and H. C. Barber, for proponents.

Gibson & Waterman, A. E. Cudworth, and A. P. Carpenter, for contestants.

HASELTON, J. This was an appeal by the contestants from a decree of the probate court allowing and establishing a certain written instrument as the last will and testament of Nancy Esterbrook, late of Brattleboro. In county court a trial by jury was had. The verdict was in accordance with the contention of the proponents, and judgment on the verdict was rendered. The will was contested on the grounds of lack of testamentary capacity, undue influence, and want of due execution. Mrs. Esterbrook left 16 nephews and nieces, and they were her next of kin. Don H. Miller, one of the nephews, was the principal beneficiary under the will, and another nephew, William Miller, had bequeathed to him a substantial legacy. To the other nephews and nieces sums merely nominal were given. During the trial the contestants took various exceptions, all of which relate to the admission or exclusion of evidence.

Lilly Vinton, one of the attesting witnesses, was called by the proponents. She testified that she lived across the street from Mrs. Esterbrook, was acquainted with her, and occasionally called upon her and visited with her. After narrating the circumstances attending the execution of the will, she was permitted, under objection and exception, to state that on the occasion of the execution of the will she noticed no peculiarities in the talk or actions of Mrs. Esterbrook. But in connection with her other testimony the statement that she observed nothing peculiar in the testatrix—that is, nothing strange, unusual, or unnatural—was admissible. Fairchild v. Bascomb, 35 Vt. 398, 417.

Hilma Anderson, another attesting witness, was called by the proponents. She testified as to the circumstances attending the execution of the will, as to remarks of Mrs. Esterbrook in respect to the will and other matters, and gave an apparently full account of what occurred on the occasion in question. Without objection she gave an opinion, based on what she had testified to, that on that occasion Mrs. Esterbrook was of sound mind. Under objection and exception she stated that she did not notice anything peculiar in the talk or actions of the testatrix. This testimony, like that of Lilly Vinton, was, however, admissible. The official transcript is referred to for what it shows in respect to the testimony of the two witnesses, already referred to, and we have considered that in connection with the recitals in the bill of exceptions.

William H. Vinton, a witness for the proponents, testified to two interviews with Mrs. Esterbrook and that in the second interview she expressed a wish that he should settle her late husband's estate. The witness testified that he told her that he could not. Under objection and exception he further testified that he told her something about who to get to settle it; that she asked him who he thought would be a good person for that business; that he told her he hardly knew; that if she wished he would speak to Mr. Brackett; that as a result of the interview he communicated with Mr. Brackett about going up to Mrs. Esterbrook's. It appeared that immediately thereafter Brackett, at Vinton's request, called on Mrs. Esterbrook, and at her request summoned A. F. Schwenk, Esq., an attorney, who responded to the summons and drew the will in question. A part of the evidence as to the interview just referred to bore upon the mental condition of the testatrix, and the rest of it bore upon the question of undue influence, for it threw some light upon the circumstances leading up to and surrounding the execution of the will. The same witness testified that he had known the testatrix for a number of years, that she had lived across the street from him 18 or 19, and that he had seen her on quite a number of occasions before the two interviews referred to. Having so testified, he was, under objection and exception, permitted to say that so far as he could see there was no marked difference between her mental condition at the times referred to and her mental condition during his previous acquaintance with her. It is urged that there was no basis for the comparison, inasmuch as the exceptions do not show that the witness had said anything about her mental condition in earlier years. But without such testimony the evidence objected to tended to show that her mind was not in any marked degree affected by increasing age, and so was admissible. Sargent v. Burton, 74 Vt. 24, 28, 52 Atl. 72; Fairchild v. Bascomb, 35 Vt. 378, 417.

Leonora E. Smith was a witness called by the proponents. She testified that she

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frequently called upon and talked with Mrs. Esterbrook, and that the latter's mental condition was sound and all right. This testimony she gave without objection. Under objection and exception she was then asked if she ever saw the testatrix do or say anything that was not consistent with a sound mind. She said she never did. The question was so amended as to limit the time of the inquiry to the period since the death of Mrs. Esterbrook's daughter Julia. The answer was, in substance, repeated. This question, either with or without the amendment, was not strictly within the rule which requires a lay witness to base an opinion of a person's sanity upon things testified to by the witness, although such a question is held proper in Massachusetts. McCoy v. Jordon, 184 Mass. 575, 69 N. E. 358. But the witness had already testified that the testatrix was mentally sound and all right and, so far as the exceptions show, had been permitted to do this without restriction, and the matter received under objection and exception added nothing to the testimony the witness had already given, and so, if improper, was harmless.

William Miller, one of the beneficiaries referred to, was a witness. In the course of his cross-examination he testified that when he visited Brattleboro he did not visit any of his relatives except Mrs. Esterbrook and a Mrs. Smith, that he had some reason for not doing so, and that Mrs. Esterbrook did not know the reason. Thereupon in redirect examination, under objection and exception, counsel for proponents were permitted to show that the reason did not exist until after the death of Mrs. Esterbrook, and to ask what the reason was. The witness said, "I was told not to call on her." It was material to show that the reason referred to in cross-examination did not exist until after the death of the testatrix, and, while the statement...