In re Smith's Will

• Decision Date: 19 October 1914
• Citation: 92 A. 223,88 Vt. 259
• Parties: In re SMITH'S WILL.
• Court: Vermont Supreme Court

92 A. 223

88 Vt. 259

In re SMITH'S WILL.

Supreme Court of Vermont. Addison.

Oct. 19, 1914.

Exceptions from Addison County Court; William H. Taylor, Judge.

Application for the probate of the will of Columbus Smith, deceased, to which his heirs at law filed objections. A verdict was rendered sustaining the will, but against two codicils also offered for probate, and contestants excepted, and also applied to the Supreme Court for a new trial for alleged misconduct of the trial judge. Affirmed, and petition for new trial dismissed.

Argued before POWERS, C. J., and MENSON, WATSON, and HASELTON, JJ., and FISH, Superior Court Judge.

P. M. Melden, W. B. C. Stickney, and E. W. Lawrence, all of Rutland, and J. B. Donoway, of Middlebury, for proponents.

Herbert W. Blake, of Gardner, Mass., Simonds & Searles, of St. Johnsbury, and J. W. Redmond, of Newport, for contestants.

HASELTON, J. This was an appeal by the contestants from a decree of the probate court for the district of Addison allowing a certain instrument, with three alleged codicils thereto, as the last will and testament of Columbus Smith, late of Salisbury, who died November 10, 1909, at the age of 89 years, leaving an estate, conceded, for the purposes of the trial, to amount to $340,000, a substantial part of which was real estate. The contestants were heirs at law of the testator. The case was first tried on appeal in 1912 by jury upon issues framed by the court. This trial resulted in a disagreement. Before the next term of court—that is, before the June term, 1913—the contestants set the case for trial by jury, and the proponents set it for trial by court. Before the trial was commenced the proponents made a motion to have the case taken from the jury list and tried by the court. This motion was overruled; the court, however, saying that it thought the case ought to be decided, and that in case of another disagreement it might take the case and decide it itself. The entire court was present throughout the trial, and the evidence was taken as if addressed to the court instead of to both the court and jury. The court adjudged that the several writings propounded as the last will and testament of Columbus Smith were such. The contestants filed a bill of exceptions.

Melvin F. Morgan, a witness called by the proponents, testified to rather extensive conversations with the testator February 18, 1903, shortly before the execution of the last codicil. He did not detail the conversations, but stated the subject-matter of them. Under objection and exception he was then allowed to characterize the questions put by the testator, saying "they were very sensible in my opinion." This evidence was proper. It was like the testimony received in the Esterbrook Will Case, 83 Vt. 229, 234, 75 Atl. 1, to the effect that certain witnesses had noticed no peculiarities in the talk or actions of the testatrix there, and was like testimony received in an earlier case to the effect that the conduct and conversation of a testatrix were strange or unnatural. Fairchild v. Bascomb, 35 Vt. 398, 417.

Frank E. Howe, called by the proponents, testified that he lived with the testator at the same hotel in Florida for several weeks in the winter of 1910. This witness described the testator's appearance and habits, and said that the witness and the testator had extended conversations about a great many things, including religion, politics, and travel. He was then asked this question:

"From what you saw of him in Florida during the winter and spring of 1910, and from the facts that you have testified to here upon this witness stand, what do you say as to whether or not at that time he was a man of sound mind and memory, and sane?"

Objection was made on the ground that no foundation was laid for the question. The questioner then added, "and from the facts as you have related them here in court." Subject to objection and exception the witness was allowed to answer. He said: "My judgment is that he was of sound mind." The contestants' argument is that, because of the "and" which introduces the amendment to the question, the witness was not confined to the facts related by him in court. But we think that notwithstanding the "and" the amendment to the question must have been understood as restricting the basis of the opinion to the facts testified to in court. We look further into the testimony of Mr. Howe. He then testified to afterwards meeting the testator on a railroad train, and in Burlington, and to their visits on those occasions, and he was asked for an opinion of the testator's soundness of mind at those times. The question did not strictly confine the witness to the facts testified to and was objected to on that ground. Thereupon the witness was reminded to base his opinion upon the facts that he had related in court. He gave the same opinion as before. The witness was then asked to give an opinion, as to the mind and degree of intelligence of the testator, based upon the conversations when in Florida, and at other times that the witness had testified to, basing his opinion upon what he had testified to in court. It is apparent that the witness supposed throughout that he was basing his opinions upon facts related to the jury, and a nice discussion of the grammatical effect of the use of the word "and" in one instance, where in strictness it should have been omitted, is uncalled for. If there was any doubt that the witness was basing his opinions upon facts testified to by him, cross-examination would have shown how that was. "And" has several uses. The famous epitaph, "Here lies a lawyer and an honest man," suggests to a wit, rather than to a logician, that there are two men in one grave. We find no error in the examination of Mr. Howe.

F. W. Briggs was a witness in behalf of the proponents. He testified that he had been teller and cashier successively of the First National Bank of Brandon; that the testator had an account there and came there occasionally to make deposits. The witness testified that he had had conversations with the testator and had overheard conversations between the testator and Mr. Young of the bank, that the conversations were coherent, but that he could not remember the subject of any of them. He was shown eight checks, all of which he identified as signed by the testator and some as filled out by him. Under objection and exception the witness gave an opinion, based on the facts testified to by him, that the testator was of sound and sane mind during the period to which his testimony related. This was objected to on the ground that no foundation was laid. But the foundation was properly laid. That the facts upon which he based his testimony were not more extensive went to the weight of his opinion merely. Foster's Ex'rs v. Dickerson, 64 Vt. 233, 244, 24 Atl. 253; Cram v. Cram, 33 Vt. 15.

Walter F. Scott, another witness for the proponents, testified that he had beef for a long time cashier of the Brandon National Bank; that the testator had an account there and came to the bank occasion ally. The witness identified several checks as those of the testator which had gone through the bank in the usual course of business. He gave without objection the opinion that the testator was of sound mind. This witness was then cross-examined, and thereafter was shown by the proponents an order or request, wholly in writing, by which the testator asked that a New York draft for $1,000 be sent him and charged to his account. The witness was inquired of if it was the custom of the bank to pay orders drawn upon it in the manner of the one shown him, and subject to objection and exception he answered: "We have always paid them." It is to be inferred in support of the ruling that the cross-examination had proceeded upon the ground that there was something unusual, something not in the usual course of business in the way this order was drawn by the testator, and in that aspect the testimony was proper.

Gertrude Sheldon, a witness for the proponents, was asked:

"From what you saw of Mr. and Mrs. Smith, and what you heard Mr. Smith say in respect to the disposition of his property, can you tell whether or not Mrs. Smith knew what his intentions in that respect were?"

The question was not objected to; but, when the witness answered, "Yes," the answer was objected to by the contestants, who moved to strike it out. But the court allowed the answer to stand, and in this there was no error. The question and answer were preliminary and were of no importance taken by themselves.

The witness then testified under objection and exception that she heard Mr. and Mrs. Smith talk about the disposition of Mr. Smith's property. The disposition of his property was such, a comparatively small part being left to his wife, that it was rather important for the proponents to show that he took his wife into his confidence and exchanged views with her about the matter, and this testimony tended to show those things.

Mrs. Smith testified that her husband knew that she was satisfied with the way in which he intended to dispose of his property after his decease, that she had property of her own, that their plans were mutual, and that in connection with their talk as to his disposition of his property they talked as to how she planned to dispose of hers. This testimony was taken under objection and exception by the contestants, and it is now claimed that it raised a collateral issue. But it did not, for, as has been said in commenting on the testimony of Mrs. Sheldon, it tended to explain why a comparatively small share of the testator's property was left to his wife, tended to show that he understood his obligations and relations and the business that he was about.

William H. Hammersley gave a deposition to the effect that he called at the testator's house two or three times between 1900 and 1905, and that once at least the testator said that it would be a nice thing to leave his home for...