Jackson v. Waller

• Citation: 10 A.2d 763,126 Conn. 294
• Court: Connecticut Supreme Court
• Decision Date: 18 January 1940
• Parties: JACKSON et al. v. WALLER.

10 A.2d 763

126 Conn. 294

JACKSON et al. v. WALLER.

Supreme Court of Errors of Connecticut.

January 18, 1940

Appeal from Superior Court, New London County; Patrick B O'Sullivan, Judge.

Proceeding for the probate of a certain instrument as the last will of Ella E. H. Brown, deceased. From a decree of the court of probate admitting the will to probate, an appeal was taken to the Superior Court by Inez Jackson and others, and verdict was entered for the contestants. From a judgment for the contestants sustaining the appeal, Charles B. Waller executor under the will of Ella E. H. Brown, appeals.

Error and new trial ordered.

BROWN and JENNINGS, JJ., dissenting.

Frank L. McGuire and Francis F. McGuire, both of New London, for appellant.

George C. Morgan, of New London, Arthur M. Brown and Charles V James, both of Norwich, and Griswold Morgan, of New London, for appellees.

Argued before MALTBIE, C.J., and HINMAN, ELLS, BROWN, and JENNINGS, JJ.

HINMAN, Judge.

Ella E H. Brown of New London died on April 17, 1937, leaving an instrument dated March 26, 1937, which was admitted to probate as her last will May 4, 1937. From this order and decree the plaintiffs appealed to the Superior Court, alleging lack of testamentary capacity and undue influence. After a protracted trial the jury returned a verdict sustaining the appeal on the ground, as revealed by answers to interrogatories, that the testatrix was not of sound mind at the time of the execution of the will. The defendant appeals from the denial of his motion to set aside the verdict, also from the judgment, assigning errors relating to the charge and rulings.

In support of the appeal from the verdict the defendant advances a contention that, as there is no constitutional right to trial by jury of an appeal from probate of a will, but it is conferred by statute (Statutes, 1835, p. 211; General Statutes, 1930, § 5624; Kinne v. Kinne, 9 Conn. 102, 21 Am.Dec. 732) the court, in testing the justification for a verdict in such a case, has greater latitude than in the ordinary jury case, including a right to pass upon the weight of the evidence. We do not find in the statement in Kinne v. Kinne, supra, 9 Conn. page 106, 21 Am.Dec. 732, that notwithstanding the intervention of a jury in such cases ‘ it still remains the duty of the court to endeavour to preserve something like uniformity of decision,’ or elsewhere, warrant for this attempted distinction, as to interference with verdicts, between these and other jury cases. The Legislature in granting the right of trial by jury in cases where there is no such constitutional right may grant it ‘ to the same extent as such right exists at common law, or * * * with restrictions, either as to the nature or extent of the right, * * * or may make the verdict purely advisory.’ 1 Page, Wills (2d Ed.) § 572. As our statute imposed no such restrictions but provided for trial by jury ‘ in the same manner as is provided for the trial of other issues in fact’ (Statutes, 1835, supra) the general rule applies and this accords with our practice in wil contests. As recently as Caldwell v. Danforth, 124 Conn. 468, 471, 200 A. 577, 578, we have affirmed the rule to be that the weighing of evidence and determining the credibility of witnesses is the exclusive function of the jury, if they acted reasonably their conclusion upon these points is final, and the verdict may be set aside only where its injustice ‘ is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles, or as to justify the suspicion that they, or some of them, were influenced by prejudice, corruption, or partiality.’ If upon the evidence there is room for a reasonable difference of opinion among fair-minded men the verdict of a jury may not be set aside. Maroncelli v. Starkweather, 104 Conn. 419, 422, 133 A. 209. ‘ This court has nothing to do with the weight of the evidence-‘ unless the verdict is so manifestly against the evidence as to make it apparent that the jury adopted some wrong principle in their deliberations, or that their minds were not open to reason and conviction, but from some cause or other were improperly or unduly influenced." Petroman v. Anderson, 105 Conn. 366, 371, 135 A. 391, 393.

A vast amount of evidence-about thirteen hundred pages of printed record-was introduced on the trial. The attentive perusal which we have accorded it reveals a large volume of evidence tending to support the claims of the plaintiffs as to the decedent's testamentary competency, as well as a profusion in conflict therewith, and we cannot say that the jury, especially under the charge as given, might not legitimately have come therefrom to the conclusion at which they arrived. Caldwell v. Danforth, supra, 124 Conn. page 471, 200 A. 577. Therefore the appeal from the verdict may not be sustained.

Mrs. Brown, the testatrix, was in her seventy-sixth year at the time of her death. Her next of kin are six cousins, including plaintiffs Inez Jackson and Mabel Allen. She was the widow of Sheriff Sidney A. Brown, who died on March 10, 1930. The findings of claims of proof of the respective parties are very voluminous but we deem it necessary only to summarize very generally those which appear most material to consideration of the assignments pertaining to the charge. The plaintiffs offered evidence that after her husband's death Mrs. Brown became morose and despondent and from 1935 began to deteriorate mentally and physically and that although her mental condition remained sound enough as late as December 4, 1936, to permit her to make the will (prior to the one here in question) which she did on that date, it thereafter became worse so that ‘ for several months before her death she was suffering from senile dementia and arteriosclerotic psychosis; ’ that on January 15, 1937, she became ill with influenza, during that illness was irrational, and did not recover until the end of the month; her attending physician at that time discovered that she had a large abdominal growth, which he believed to be cancerous but she declined treatment for it. Prior to January cataracts had formed on both eyes and her vision was limited. The plaintiffs further claimed to have proved that on March 17th she suffered a cerebral hemorrhage, was confined to her bed on and after March 20th and was in a coma or comatose condition March 21st, and thereafter until her death; that on March 21st, 24th and 25th she was visited by cousins to whom she made no response when they spoke to her; that March 25th when the defendant had been informed that Mrs. Brown wanted to see him as her attorney, he assumed regarding a will, he requested her attending physician to see her and report to him her condition, which the doctor did; that defendant then visited her and she directed him to make several changes from the provisions in the last prior will (of December 4, 1936) including a change from a bequest of the residue to the plaintiffs to one to Nelson Brown and his wife and a $5000 bequest to P. L. Harwood, as to whom she had previously expressed antipathy; that when the defendant returned the next day, March 26th, with the draft of the will prepared in accordance with her instructions she directed further changes, including alteration of the provisions for the Browns to a gift of $15,000, and bequeathed the residue to two New London charities; that after the draft had been changed accordingly she signed it in the afternoon of the same day, being raised in bed, the will resting on a book placed on her knees, and in signing she wrote three l's in Ella, annexed an additional H to her middle initials and wrote two r's in Brown. Their final general claim of proof was that on March 26th ‘ by reason of senile dementia, cerebal arteriosclerosis, cancer of the uterus, infection from influenza and cerebal hemorrhage, Mrs. Brown was not of sound mind.’

The claims of proof of the defendant included the following: That during all the time after her husband's death Mrs. Brown managed her own affairs with the help of her lawyer and of Harwood as her business adviser, her property consisting of real estate, mortgages, and cash in banks, at the time of her death aggregating about $162,000, and she was thrifty and careful in business matters. While her eyesight became dim she read the papers until near the end of 1936, and threafter they were read to her; she continued to write checks until December, 1936, and up to and including March 17, 1937 signed all checks drawn on her account; that on that day she went over her household bills and signed checks for them, that she was interested in social matters and continued so until April, 1937; that she never showed symptoms of any illness or disease except an attack of erysipelas about fifteen years prior to her death until the attack of influenza on January 15, 1937; that in the latter part of January she had recovered sufficiently to leave the bed, and later fully recovered from the influenza, continued to receive callers, chatted with guests about the news of the day and general subjects and attended to her business affairs; that on March 18th or 19th she went to bed but had callers every day with whom she talked intelligently; that on March 25th when her attorney called she spent more than an hour with him, telling him what disposition she wanted to make of her property and the changes she wished to have made in the former will. Again on the morning of the 26th she spent considerable time discussing with him the further changes she had decided upon and reasons therefor. Eleven persons who saw and talked with her at various times during the day and evening of March 26th testified as to conversations with her and their...