In re George W. Moxley's Will

• Citation: 152 A. 713,103 Vt. 100
• Parties: IN RE GEORGE W. MOXLEY'S WILL
• Decision Date: 05 November 1930
• Court: Vermont Supreme Court

152 A. 713

103 Vt. 100

IN RE GEORGE W. MOXLEY'S WILL

Supreme Court of Vermont

November 5, 1930

October Term, 1930.

Evidence---Opinion as to Sanity by Non-expert---Competency---Weight---Discretion of Court---Proof of Identity---Wills---Undue Influence---Presumption---Burden of Proof---Confidential Relationship as Raising Presumption of Undue In- fluence---Relationship of Nurse and Patient---Circumstances Attending Execution of Will---Insufficiency of Evidence To Show Undue Influence---Unnatural and Unreasonable Disposition by Will---Signature to Will---Burden of Proof---Construction of Instructions of Court---Harmless Error---Burden of Showing Prejudice---Sufficiency of Charge as to Necessity That Will Must Be Proved by Extrinsic Evidence---Sufficiency of Proof as to Signature---New Trial Not Granted To Present New Questions---Sufficiency of Evidence To Justify Inference as to Presence of Testator in City Where Will Executed---Effect of Such Presumption---Attesting Witnesses.

1. Non-expert witness may give his opinion as to sanity of another, when based upon conversations or dealings had with such person, or upon his appearance, or any fact bearing upon his mental condition within witness' own knowledge and observation, he having first testified as to such facts.

2. Question whether non-expert witness as to another's sanity has had adequate opportunity of observation, in circumstances calculated to result in inference helpful to jury, is within discretion of trial court.

3. Extent of acquaintance of non-expert witness, dealings with and observation of another person whose sanity is under inquiry, affects weight to be given his opinion as to sanity of such person, and its credibility, which must be left to jury to decide.

4. In view or testimony of non-expert witnesses as to their respective acquaintance and business and social relations with another, and their consequent opportunities for observation, held there was no abuse of discretion in permitting them to give their opinions as to his sanity.

5. That non-expert witnesses testifying as to sanity of another did not repeat conversations had with him, but only stated subject-matter, did not affect question of admissibility of evidence.

6. In absence of direct evidence, identity of person may be proved in various ways, most usual being description of physical appearance and characteristics; and, generally, any fact, no matter how slight, which would tend to satisfy person of ordinary judgment, in conduct of his every-day affairs, as to another's identity, is admissible on that issue.

7. Testimony as to similarity of size is competent on question of identity.

8. Evidence that man calling himself same name as alleged testator, and giving same residence, made statements showing knowledge of movements and affairs of supposed testator, who was actually in city where will was made on day in question together with evidence as to similarity of size, held as fairly and reasonably tending to show that person signing will was testator named therein, making question for jury.

9. Burden of proving existence of undue influence is ordinarily, on contestants.

10. When circumstances connected with execution of will are such as law regards with suspicion, law raises presumption of undue influence, and burden is shifted to proponent, who must show affirmatively that will was not procured by this means.

11. Generally, where relationship of trust and confidence obtains between testator and beneficiary, or where latter has gained influence or ascendency over former, presumption of undue influence applies, and burden is on proponent affirmatively to show its absence.

12. Relationship of nurse and patient between beneficiary proponent of will, and 70-year old testator, which existed while testator was at hospital for operation, standing alone, held insufficient to raise presumption of undue influence.

13. Circumstances attending execution of will, held insufficient to generate suspicion of undue influence by proponent.

14. That testator made his home at house of proponent, both before and after operation, where proponent after operation acted as his nurse, held insufficient, either standing alone or taken in connection with other circumstances in case, to raise presumption of undue influence as to will executed before operation.

15. Provision of will giving only half of estate to son and other half to proponents in whose house testator had lived for many years and with whom there was evidence of his friendship, held not so unnatural and unreasonable as to aid in raising presumption of undue influence.

16. Only when will is grossly unreasonable in its provisions and plainly inconsistent with testator's duty to his familly, in case of doubt, can inequality have any effect on question of undue influence.

17. Burden of proof is on proponent to show that signature to will is that of alleged testator.

18. Charge of court to jury is not to be construed piecemeal, but as whole.

19. Instruction containing statement that will had "signature" of testator, held not erroneous when construed as whole, language having been used as part of instruction wherein jury was plainly told that issue was whether alleged testator signed document, and that burden was upon proponents to prove such fact by preponderance of evidence, court in using term "signature" of testator having evidently meant that name signed was that of testator, not that he actually signed it, leaving latter point to jury.

20. Instruction that jury might consider anything they had observed in court that threw any light on reliability of testimony of various witnesses, if error, held unavailing, prejudice from use of language not being shown.

21. Burden of showing prejudice is on excepting party.

22. Purport of charge held to be that will must be proved by evidence extrinsic to document itself, rendering unavailable exception to failure of court to charge that statements contained in will were not to be taken as facts, but must be proved.

23. Proof that alleged testator was signer of will was necessarily proof that signature was his.

24. Upon issue whether signature to will was that of alleged testator, proof that he was signer of will was equally competent as proof of his handwriting would have been.

25. Rehearing will not be granted for purpose of affording opportunity to present new questions.

26. Evidence that alleged testator went from his home to certain city on September 13, for purpose of undergoing operation, and returned therefrom after absence of six weeks, held to warrant inference that he was in such city September 15, date when will in question was executed.

27. To draw inference from evidence justifying such inference, that alleged testator was in city where will was executed on date of its execution, is not to presume in favor of its due execution and validity.

28. Attesting witnesses to will, held not incompetent to act as such although not personally acquainted with testator.

APPEAL IN PROBATE. From a decree of the probate court for the District of Newport, allowing an instrument as the last will and testament of George W. Moxley, contestant Roland R. Moxley appealed. Trial by jury at the March Term, 1930, Orleans County, Sherburne, J., being specially assigned to preside, on account of the disqualification of Sherman, J., presiding judge for the term, who was disqualified by reason of having been the scrivener of the will. Verdict in favor of proponents Gracia E. Humphrey et al. Judgment on verdict that instrument was the last will and testament of George W. Moxley. The contestant excepted. The opinion states the case.

Judgment affirmed. To be certified to the probate court.

Lee E. Emerson and John J. Higgins (of Boston, Mass.) for the contestant.

It was not sufficient to qualify non-expert to give his opinion as to sanity of testator, that witness should merely state that he had different conversations with testator and what subject-matter thereof was, but jury were entitled to know the details of the conversation. Chickering v. Brooks, 61 Vt. 554; Cram v. Cram, 33 Vt. 15, 19; Foster v. Dickerson, 64 Vt. 233; Sargent v. Burton, 74 Vt. 24.

Proponent of will and beneficiary thereunder, having been testator's nurse while he was undergoing operation and for some time thereafter, testator being about 70 years old, stood in confidential relationship to him, from which situation law will presume undue influence was exercised on testator, and place upon proponent burden of showing to contrary. 28 R. C. L. 147; Maddox v. Maddox, 114 Mo. 35; Dausman v. Rankin, 189 Mo. 677, 107 A. S. R. 391; In re Miller, 179 Pa. St. 645; In re Cowdry, 77 Vt. 359; In re Barnes, 70 Vt. 352.

Law presumes that a man dies intestate, and that his property descends to his heirs. 28 R. C. L. 398; Selbeck v. Grothman, 248 1ll. 439, 94 N.E. 67, 21 Ann. Cas. 229, and note.

The proponent failed to identify the alleged testator as the person who signed the will, and proof of signature of a testator to a will is necessary in a will contest under the law of Vermont, G. L. 3207, burden being on proponent and not on contestant. Adams v. Field, 21 Vt. 256; Thornton v. Thornton, 39 Vt. 122, 151; Dean v. Dean, 27 Vt. 746; Williams v. Robinson, 42 Vt. 658, 662.

Attesting witnesses to a will, having no acquaintance with person signing document, nor means of identifying him as the person he claims to be, cannot properly or legally attest its execution under such circumstances. 40 Cyc. 1110, 1301; Brinckerhoff v. Remsen, 8 Paige, 488; Mowry v. Silber, 2 Bradford, 133; 1 Redfield on Wills, 238. William M. Wright and James B. Campbell for the proponents.

Non-expert may give his opinion as to sanity or insanity of another based...