In re Mason's Will

• Decision Date: 23 March 1909
• Citation: 72 A. 329,82 Vt. 160
• Court: Vermont Supreme Court
• Parties: In re MASON'S WILL.

72 A. 329

82 Vt. 160

In re MASON'S WILL.

Supreme Court of Vermont. Caledonia.

March 23, 1909.

Appeal from Probate Court, Caledonia County; Eleanor L. Waterman, Judge.

In the matter of Jane Mason's will. From a decree of the county court establishing the will on appeal from the probate court, contestant appeals. Affirmed.

Argued before ROWELL, C. J., and TYLER, MUNSON, and WATSON, JJ.

Dunnett & Slack, for appellant. Howe & Hovey, for appellee.

MUNSON, J. Evidence regarding the mental condition of the testatrix and her feelings towards her children four years before the execution of the will was not too remote to be received in connection with like evidence relating to other times during the four years.

The contestant's concession that the testatrix was sane at the time of the second interview testified to by Mr. Howe did not render his account of that interview inadmissible. It is ordinarily within the discretion of the court to reject or receive evidence of a fact that is conceded. Dunning v. Maine Cent. R. Co., 91 Me. 87, 39 Atl. 352, 64 Am. St Rep. 208; Commonwealth v. Costello, 120 Mass. 358; Whitside v. Lowney, 171 Mass. 431, 50 N. E. 931. But the nature of the evidence offered and its relation to the conceded fact and to the main issue may be such that any action of the court thereon will be revisable. The value of evidence like that in question depends in part upon the combined effect of a series of occurrences and expressions extending over a considerable period and continuing to the time when the will was made, and a concession of sanity at any particular time may not give the proponent all the benefit that would have been derived from a narrative of what was then said and done. This concession covered only the fact of sanity at the particular time designated, evidence of which was admissible solely for its bearing on the mental condition existing when the will was executed. The proponent was entitled to show the full mental capacity of the testatrix at the time of the testamentary act, however much it might exceed the requirement of a disposing mind, and the concession made was not coextensive with the evidence introduced, for that tended to establish both testamentary capacity and a mental vigor not likely to be overcome by undue influence. If any of the evidence bore solely upon the question of undue influence, its reception in the opening was a matter of discretion.

The contestant's position is not supported by Crocker v. Chase, 57 Vt. 413. There the contestants introduced evidence of statements made by the testatrix three years after the execution of her will, to the effect that she was so weak at the time of its execution that she did not know what she was doing. In offering this evidence the contestants stated, and offered to show, that the testatrix was mentally competent when the statements were made, and the proponent said nothing to the contrary. So these statements were not offered as showing the mental condition of the testatrix at the time they were made for the bearing that would have upon her mental condition at the date of the will, but were offered solely as direct evidence of the weakness of her mind when she executed the will. The distinction between the two cases is obvious. The evidence in the Crocker Case was merely the testatrix's declaration of a past condition offered by the contestants in impeachment of a will formally executed and left uncancelled. The evidence here was a presentation of an actual manifestation of the testatrix's mind, offered by the proponent as part of a continuous history of mental capacity covering the time when the will was made. The statement in the Crocker Case was not held inadmissible merely because the testatrix was treated as sane at the time it was made, but because that fact broke the...