In re Nancy Esterbrook's Will
| Citation | 75 A. 1,83 Vt. 229 |
| Parties | IN RE NANCY ESTERBROOK'S WILL |
| Decision Date | 20 January 1910 |
| Court | United States State Supreme Court of Vermont |
Special Term at Brattleboro, November, 1909.
APPEAL from a decree of the probate court establishing an instrument as the last will and testament of Nancy Esterbrook. Trial by jury at the April Term, 1909, Windham County, Butler, J presiding. Verdict and judgment for the proponents. The contestants excepted. The opinion states the case.
The judgment is affirmed and ordered to be certified to the probate court.
Gibson & Waterman, A. E. Cudworth and A. P. Carpenter for the contestants.
Present ROWELL, C. J., MUNSON, WATSON, HASELTON, and POWERS, JJ.
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 sixteen 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 witness, 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 eighteen or nineteen, 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 A. 72; Fairchild v. Bascomb, 35 Vt. 398, 417.
Leonora E. Smith was a witness called by the proponents. She testified that she 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. Jordan, 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 re-direct 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 of the witness as to what the reason was was immaterial, it was brought out in re-direct examination upon a matter introduced into the case by the contestants in cross-examination, and it was proper for the proponents to show that the reason was immaterial.
Sometime prior to her death the testatrix had a fall. Kate Cressy, a witness for the proponents, testified to a conversation with the testatrix, had about a month after the execution of the will, in which the latter explained how she fell. Under objection and exception she stated that Mrs. Esterbrook's explanation was that she went upstairs to see the dog--that he was hurt--and that in coming down she fell, that she thought she had got to the last stair, thought she had got down, and stepped off and fell. This explanation of Mrs. Esterbrook was properly received since the character of the statements indicated something as to her mental condition at a time very near the time of the execution of the will and so bore upon the question of her mental condition at the latter time. In re Jane Mason's Will, 82 Vt. 160, 72 A. 329; Chickering v. Brooks, 61 Vt. 554, 562, 18 A. 144; Crocker v. Chase, 57 Vt. 413.
The case last cited is somewhat relied upon by the contestants, but their claim is not supported by that case, the doctrine of which is clearly explained in the Mason Will case first above cited.
Don H. Miller, the nephew who was the principal legatee, was a witness and was permitted, under objection and exception, to testify as to his financial condition and his income. This testimony was made admissible by evidence in the case which tended to show that Mrs. Esterbrook was conversant with his financial condition. Crocker v. Chase, 57 Vt. 413, 421; Fairchild v. Bascomb, 35 Vt. 398, 417.
He also testified as to the straightened circumstances in her life time of his mother, long since deceased, and as to the relation which existed between his mother and her sister, the testatrix. The contestants argue that this evidence was clearly inadmissible; but it was received without objection, and this fact dispenses us from considering its admissibility.
Shortly after the execution of the will, Don H. Miller brought a petition to the probate court asking that a guardian be appointed for Mrs. Esterbrook on the ground that she was physically and mentally incapable of taking care of herself and property. A hearing was had upon this petition and a guardian was appointed. In Miller's cross-examination he was asked this...
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