Lancaster v. Bank of New York

• Decision Date: 19 July 1960
• Citation: 164 A.2d 392,147 Conn. 566
• Court: Connecticut Supreme Court
• Parties: John E. LANCASTER et al. v. BANK OF NEW YORK, Executor (ESTATE of Robert A. LANCASTER). BANK OF NEW YORK, Executor (ESTATE of Robert A. LANCASTER). v. John E. LANCASTER et al. Supreme Court of Errors of Connecticut

Page 392

164 A.2d 392

147 Conn. 566

John E. LANCASTER et al. v. BANK OF NEW YORK, Executor (ESTATE of Robert A. LANCASTER).

BANK OF NEW YORK, Executor (ESTATE of Robert A. LANCASTER). v. John E. LANCASTER et al.

Supreme Court of Errors of Connecticut.

July 19, 1960.

Palmer S. McGee, Jr., Hartford, for the appellant (defendant in the first case and plaintiff in the second).

Morgan P. Ames, Stamford, with whom, on the brief, was Edward R. McPherson, Jr., Stamford, for the appellees (plaintiffs in the first case and defendants in the second).

Before BALDWIN, C. J., and KING, MURPHY, MELLITZ and SHEA, JJ.

KING, Associate Justice.

On August 12, 1957, the Probate Court for the district of Ridgefield entered a decree admitting to probate the last will and testament of Robert A. Lancaster, a bachelor, who died, a resident of Ridgefield, on May 7, 1957, leaving a gross estate well in excess of $100,000. From this decree the contestants, who are the decedent's heirs at law, appealed to the Superior Court. The reasons of appeal raised the two statutory issues of due execution and testamentary capacity. General Statutes §§ 45-160, 45-161; Crane v. Manchester, 143 Conn. 498, 501, 123 A.2d 752, and cases cited. They also included a claim that the will, which was executed April 25, 1957, was the product of undue influence brought to bear on the testator by Mrs. Mabel M. Chisolm, who was the principal beneficiary under the will and in whose apartment the testator lay ill while the will was being prepared and executed. Upon a trial to the jury, a verdict that the will was invalid was rendered on March 19, 1958. The jury's answers to interrogatories established that the issue of testamentary capacity was found in favor of the proponent and the issue of undue influence in favor of the contestants. Apparently due execution, on which the proponent offered evidence, was quite properly not questioned by the contestants. See Doolittle v. Upson, 138 Conn. 642, 643, 88 A.2d 334; Boschen v. Second National Bank of New Haven, 130 Conn. 501, 504, 35 A.2d 849. The proponent's motion to set aside the verdict as against the law and the evidence was denied, without memorandum, on May 23, 1958. From the judgment entered on the verdict on May 23, 1958, the proponent appealed on June 3, 1958. On January 7, 1959, the proponent filed its assignment of errors, claiming error in the denial of its motion to set aside the verdict as against the evidence and in three rulings on evidence.

In the meantime, by complaint served on November 26, 1958, six months after the entry of judgment in the probate appeal, the proponent instituted a petition for a new trial of the probate appeal on the claim of newly discovered evidence. The petition was ultimately denied, and an appeal from that judgment is consolidated with the appeal from the judgment in the appeal from probate. If reversible error occurred in the appeal from probate, the proponent would obtain a new trial and it would be unnecessary to consider the petition for a new trial. Accordingly we first turn to the assignments of error in the appeal from probate. Three of these attack rulings on evidence.

Counsel for the contestants read the direct testimony of Dr. Grafton E. Burke as given in a deposition which had been taken by the proponent. Dr. Burke had first attended the decedent in Mrs. Chisolm's apartment on April 24, 1957, which was the day before the will was executed and the day before the decedent was taken to the hospital. The decedent had a cancer of the groin which proved fatal. The proponent objected to a question asked of Dr. Burke during his cross-examination by the contestants. The objection was not addressed merely to the form of the question, and therefore it properly was made during the reading of the deposition at the trial. Rusch v. Cox, 130 Conn. 26, 35, 31 A.2d 457. The finding states that no ground for the objection was given. The objection was overruled and the proponent excepted. Since no ground for the objection was stated, we cannot find error in the court's action in overruling it. See Coupland v. Housatonic R. Co., 61 Conn. 531, 552, 23 A. 870, 15 L.R.A. 534; Practice Book, § 155.

Mrs. Doris Chapman was called as a witness by the contestants and testified that she had assisted Mrs. Chisolm daily in caring for the decedent in her apartment during the week before he was taken to the hospital. The finding states that Mrs. Chapman was called by the contestants 'to testify on certain very limited issues,' which 'did not include any conversations by Lancaster concerning hospitalization.' On her cross-examination, the court excluded, as beyond the scope of the direct examination, a question as to whether the decedent had ever indicated to her or to Mrs. Chisolm his wishes in regard to going to the hospital. The ruling was correct. Finch v. Weiner 109 Conn. 616, 619, 145 A. 31. Furthermore, the finding discloses that, later on, in the rebuttal portion of the proponent's case, Mrs. Chapman was called as the proponent's witness and testified that the decedent told her that he did not want to go to the hospital. Even if the ruling excluding the cross-examination had been erroneous, the subsequent testimony would have rendered the error harmless and therefore immaterial.

Twelve of the seventeen witnesses called by the contestants testified by deposition and were not present at the trial. One of these deponents was Dr. Charles H. Armando Krebs. Krebs had received a degree in medicine from a European university; he did not practice medicine in this country and to a considerable extent devoted himself to music. Mrs. Chisolm was also interested in music and had sung professionally. He and Mrs. Chisolm had become acquainted, because of their common interest in music, while returning from Europe on the same ship. When the decedent lay ill in Mrs. Chisolm's apartment, Krebs called several times a week at one period in connection with a European concert tour which he was arranging for Mrs. Chisolm. His deposition was taken in New York at the instance of the contestants. Included among those present at the taking of the deposition were counsel for the contestants, counsel for the proponent, and Mrs. Chisolm's personal counsel, Alfred Rice. Krebs spoke and wrote English so imperfectly as to be frequently unintelligible. At the outset of the taking of the deposition, after he was sworn, he asked for an interpreter. This precipitated a long colloquy, preliminary to the deposition proper, between Krebs and the three attorneys. The discussion ranged over a variety of topics. Counsel for the proponent, aided by Rice, attempted to persuade Krebs to refuse to testify at all, on the ground that he had not been served with a subpoena and on the further ground that he was entitled to consult counsel of his own. Krebs testified to efforts of unknown persons to influence his testimony by threats and intimidation. Finally, he decided that he needed no lawyer but did need a German interpreter. Thereupon a German interpreter was obtained and Krebs was resworn and gave his deposition.

When the deposition proper was offered at the trial, counsel for the proponent claimed that if all or any part of it was to be read in evidence the entire preliminary colloquy should also be read because it bore on the weight to be given to Krebs's testimony. The court refused to permit the preliminary colloquy to be read, pointing out that some parts of it were inadmissible for any purpose. To this ruling an exception was taken. It may be that certain portions of the colloquy could properly have been admitted as bearing on the credibility of the witness. No such claim, however, was made. The claim was that the entire colloquy should be read to the jury. The court was not in error in overruling it. Johnson v. Rockaway Bus Corporation, 145 Conn. 204, 210, 140 A.2d 708.

The final assignment of error is based on the court's refusal to set aside the verdict as against the evidence. We are hampered in our review of this ruling by the court's failure to file any memorandum accompanying and explaining its denial of the motion. See cases such as Lupak v. Karalekas, 147 Conn. 432, 433, 162 A.2d 180; Kerrigan v. Detroit Steel Corporation, 146 Conn. 658, 663, 154 A.2d 517 (dissenting opinion). While a memorandum of decision is not legally required on the denial of a motion to set aside the verdict, but only on the granting of it (Practice Book § 163), it is sound practice, where, as in this case, the motion is not frivolous, to set forth in a memorandum the basic reasons why the motion is denied.

The court held as matter of law that Mrs. Chisolm's relationship to the decedent was not of a confidential nature so as to relieve the contestants of the burden of proving undue influence. Page v. Phelps, 108 Conn. 572, 584, 143 A. 890; Berkowitz v. Berkowitz, 147 Conn. 474 476, 162 A.2d 709. Recently, we had occasion to summarize our law on the meaning of the term 'undue influence' as applied to will contests. Lee v. Horrigan, 140 Conn. 232, 237, 98 A.2d 909, and cases cited. Direct evidence of undue influence is often unavailable and is not indispensable. Salvadore v. Hayden, 144 Conn. 437, 440, 133 A.2d 622. On the other hand, the mere opportunity of exerting undue influence, which of course existed to a marked degree in the present case, is not alone sufficient. Richmond's Appeal, 59 Conn. 226, 246, 22 A. 82; Hills v. Hart, 88 Conn. 394, 402, 91 A. 257. There must be proof not only of undue influence but that its operative effect was to cause the testator to make a will which did not express his actual testamentary desires. Hills v. Hart, supra, 88 Conn. 401, 91 A. 257. Of course, the will here disregarded to a great extent the testator's heirs at law, that is, his brother and the two children of his deceased sister, and left the bulk of his estate to one wholly unrelated to him. If the jury found that such a...