In re Everett's Will

• Citation: 166 A. 827
• Parties: In re EVERETT'S WILL.
• Decision Date: 02 May 1933
• Court: United States State Supreme Court of Vermont

166 A. 827

In re EVERETT'S WILL.

Supreme Court of Vermont. Bennington.

May 2, 1933.

On Reargument June 16, 1933.

[Copyrighted material omitted.]

Exceptions from Bennington County Court; John S. Buttles, Judge.

Proceedings for the probate of the last will and testament of Edward H. Everett. The probate court admitted the will, but, on trial in the county court, contestants recovered verdict and judgment disallowing the instrument, and proponents bring exceptions.

Reversed, and cause remanded.

Argued before POWERS, C. J., and SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

W. R. Daley, of Brattleboro (Wilton J. Lambert and Rudolph H. Yeatman, both of Washington, D. C, of counsel), for Grace Burnap Everett.

Warren R. Austin, of Burlington, E. Barton Chapin, of Boston, Mass., and Collins M. Graves, of Bennington (Austin & Edmunds, of Burlington, of counsel), for contestants.

SLACK, Justice.

This is an appeal from the decree of the probate court admitting to probate an instrument purporting to be the last will and testament of Edward H. Everett, late of Bennington. A trial was had by jury in the county court, which resulted in a verdict and judgment disallowing the instrument, and exceptions were filed by the proponents. These exceptions are prosecuted in this court by Grace Burnap Everett, the widow of the decedent, who is the principal beneficiary under the instrument, in her individual capacity. The contestants are daughters of decedent by a former marriage. Their mother died in 1917.

Decedent married Grace Burnap, the widow, March 27, 1920. He was then sixty-nine years old, and thirty years older than Miss Burnap. The instrument in question was executed August 2, 1927. Decedent died April 28, 1929. There survived him, beside the widow, three daughters by his first wife, Amy E. Wing, Mary E. Turri, and Anne H. Selden, and two daughters by his second wife, Grace Elizabeth, born in 1921, and Sarah, born in 1922. He left an estate valued at $2,357,586.40, as appears from the inventory filed in the probate court. This consisted largely of stocks in different corporations. Among these were six hundred and fifty-two shares in the Edward H. Everett Company valued at $750,667.16. Under the terms of the alleged will the widow receives all of the latter stock and one-half of the residue of decedent's estate; each of his daughters by his first wife receive one-tenth of such residue, and two-tenths of such residue is placed in trust for the benefit of his daughters by his second wife. Prior to the execution of the alleged will decedent had given to his wife, outright or in trust, real and personal property valued at upwards of $3,000,000, and had erected a trust of $90,000 for his daughter Grace Elizabeth, and a trust of $100,000 for his daughter Sarah.

The real issue below was whether the instrument in question was the result of undue influence exerted by Mrs. Everett over the decedent. But, as bearing on this issue, the contestants claimed throughout the trial that decedent's condition of mind at the time the instrument was executed was such that it was completely overpowered by the will of his wife; that this was due to her conduct respecting the relations between them, her conduct respecting his and her relations toward the contestants and their families, and her interference with, and domination of, his business and money affairs. It was claimed, too, that this conduct on her part began soon after she became acquainted with decedent and continued to the time the instrument was executed. Thus a wide field of investigation was thrown open, and it was explored with great diligence. It was not claimed that decedent lacked testamentary capacity in the sense that he was insane, nor could it be, since the undisputed evidence showed that, except for the undue influence, if any, exercised over him by his wife, he transacted his business affairs with marked skill and ability.

While undue influence and lack of testamentary capacity are separate and distinct issues, the condition of a person's mind at the time he did a certain thing which is claimed to have been the result of undue influence is always an important question, since what would unduly influence the action of one person might have no effect whatever upon the action of another. So it is that in will cases where lack of testamentary capacity or undue influence are the grounds of contest, there are a few and but a few artificial rules to be applied. The great problem of whether or not the instrument offered for probate is the product of a disposing mind acting freely, in view of all the affections, sympathy, confidence, indifference and distrust, likes and dislikes, memories, purposes and anticipations engendered, it may be throughout a lifetime, demands solution through an investigation befittingly untrammeled, and the inquiries must for the most part be carried on in accordance with liberal rules of procedure. In re Esterbrook's Will, 83 Vt. 229, 241, 75 A. 1; In re Wells' Will, 95 Vt. 16, 113 A. 822; Crocker v. Chase, 57 Vt. 419. Prof. Wigmore, in his work on Evidence, vol. 3, par. 1738 (a), states the rule thus: "The existence of undue influence or deception involves incidentally a consideration of the testator's incapacity to resist pressure and his susceptibility to deceit, whether in general or by a particular person. This requires a consideration of many circumstances, including his state of affections or dislike for particular persons, benefited or not benefited by the will; of his inclinations to obey or to resist these persons; and, in general, of his mental and emotional condition with reference to its being affected by any of the persons concerned. All utterances and conduct, therefore, affording any indication of this sort of mental condition, are admissible, in order that from these the condition at various times (not too remote) may be used as the basis for inferring his condition at the time in issue. The use of such data is universally conceded to be proper." And, in subdivision (b) of the same paragraph, the author continues: "Furthermore, the normality of the will's dispositions, with reference to the natural and uninfluenced desires of the testator, must be investigated. That influence is 'undue,' implies in part that the testamentary disposition in controversy deviates from that which the testator under the influence of his ordinary inclinations would have made. If the tribunal can ascertain his normal tendencies and plans, a standard is found by which to test the dispositions in issue. If these harmonize with this normal standard, the charge of undue influence can have little or no support; if they diverge abnormally, there is then some inducement to examine further into the nature of the influence producing this divergence. Accordingly, to establish this normal tendency or inclination, the testator's condition of mind before and after the time in issue not only may be but must be examined; his state of affection or dislike to specific persons, and his general testamentary attitude towards them, will help to form the standard of his normal dispositions. For this purpose, his utterances indicating the state of his affections and intentions, and in particular his other testamentary acts or expressions, if any, whether prior or subsequent, may all be considered; the evidential principles already noted (Par. 'a', supra) sufficing equally for this purpose, This use of such evidence is also universally sanctioned."

In order to avoid a will on the ground of undue influence, the influence must be such as to destroy the free agency of the testator at the time and in the very act of making the instrument; but this does not mean that such influence must be directly exerted at the moment the instrument is executed, or within any particular time prior thereto, but rather that, whenever exerted, whether months or years before, it must still be operative upon the testator's mind in the very act of executing the instrument, and be an effective cause of the disposition made therein. Seals v. Seals, 213 Ky. 779, 281 S. W. 982; Thomas v. Cortland, 121 Md. 670, 89 A. 414. Inferentially, this court recognized such to be the law in Re Chisholm's Will, 93 Vt. 453, 108 A. 393, 394, where it is said: "The contestant excepted to that part of the charge wherein the court instructed the jury that in order to defeat the will the undue influence must have been exerted upon the very act of making the will. The fault found with this instruction is that it gave the jury to understand that the person chargeable with undue influence must have been actively engaged in exerting such influence over the testator at the very time the will is executed. But, taken as a whole, the charge does not convey this idea. All that it means is that the influence must be effective at the time the will is made."

It will be noted that Professor Wigmore says in what is quoted above that the mental condition of the testator at various times "not too remote" may be used as the basis, etc. Questions of remoteness are, to a large extent, in the discretion of the trial court, there being no arbitrary rule as to the time over which the inquiry may extend. Page on Wills, § 714. See, too, In re Martin's Estate. 92 Vt. 362, 104 A. 100. Evidence which tends to show that the beneficiary acquired control over the testator's mind before the will was made, and retained such control beyond the period at which the will was executed, is admissible, even if such evidence relates to a remote period of time. Page on Wills, supra.

It is said in Smith v. Martin, 93 Vt. 111, 129, 106 A. 666, 674: "When the question is as to the admissibility of evidence of a fact as the basis of an inference that it existed at a previous or subsequent time, the true inquiry in each case is: At what point will evidence of the existence of a given fact or state of affairs cease to he probative as to its existence at an earlier...