Maude O'rourke v. Walter H. Cleary

• Decision Date: 04 January 1933
• Citation: 163 A. 583,105 Vt. 85
• Parties: MAUDE O'ROURKE v. WALTER H. CLEARY ET AL
• Court: Vermont Supreme Court

163 A. 583

105 Vt. 85

MAUDE O'ROURKE v. WALTER H. CLEARY ET AL

Supreme Court of Vermont

January 4, 1933

October Term, 1931.

Evidence---Inadmissibility of Entries Constituting Mere Memoranda in Private Diaries and Memorandum Books---Trial---Findings Based on Inadmissible Evidence---Wills---Construction with Respect to Whether Bequest Is in Lieu of Widow's Statutory Rights---Authority of Supreme Court under G. L. 3228.

1. Entries in diaries or memorandum books which are memoranda merely, are inadmissible as independent evidence in favor of party making them.

2. Memorandum book in testator's handwriting, containing list of securities and other items of property, real and personal, and value thereof, held inadmissible to show decedent's belief as to value of his property on dates named therein.

3. Findings respecting decedent's belief regarding value of property, which were excepted to, based on inadmissible private memoranda, must be rejected.

4. Devise by husband does not extinguish widow's right to homestead and dower, unless it clearly appears that such was the intention of testator.

5. Provisions of will wherein specific sum was bequeathed to testator's widow in addition to real estate and household goods, furnishings, and contents of house in certain city held not to show intention on part of testator that bequest should be in lieu of plaintiff's statutory rights as surviving widow.

6. Determination of statutory rights of widow in either real or personal property of deceased husband, and steps necessary for her to avail herself of them, is for probate court, rather than for court of chancery in proceedings under G. L. 3228, to construe and apply.

7. Supreme Court, having determined that decedent did not intend bequest in will to be in lieu of widow's statutory rights, held to have exhausted its authority under G. L 3228.

APPEAL IN CHANCERY. Bill in chancery was brought under G. L. 3228 for construction of provisions of will, to determine whether bequest therein to widow was in lieu of her statutory rights. Heard on bill, answer, and findings of fact by the chancellor, at the March Term, 1932, Orleans County, Sturtevant, Chancellor. Decree for the plaintiff. The defendants excepted and appealed. The opinion states the case.

Decree altered, affirmed as altered, and cause remanded.

Walter H. Cleary and Porter, Witters & Longmoore for the defendants.

J. W. Redmond and Pierce & Miles for the plaintiff.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

SLACK

This is a bill in chancery brought under G. L. 3228, for the purpose of having construed the last clause of paragraph eight of the will of Thomas Francis O'Rourke late of Derby, deceased. This paragraph in full reads as follows:

"If I should die possessed of any real estate in Newark, N. J., I give, grant, devise and bequeath the same to my now intended wife, Maude Delaney of Newark, N. J., and I also give and bequeath to her all household goods, house furnishings and all contents of any house or apartment that may belong to me or may be occupied by us in Newark, N. J.; and I give and bequeath to the said Maude Delaney the sum of Twenty-five Thousand Dollars ($ 25,000.00) all of the above to be to her and her heirs forever."

This case has been here once before. See 104 Vt. 312, 163 A. 583. The only question then before us was whether the facts alleged in the bill gave the court of chancery jurisdiction under the statute above mentioned. This question was raised by a demurrer to the bill and by a motion to dismiss the bill. It was held that the bill stated grounds for equitable relief, and the case was remanded for further proceedings. After remand the defendant answered the bill, and a hearing on the merits was had before a chancellor, who found and stated the facts and entered a decree for plaintiff. The case is here on exceptions to the admission of certain evidence and to certain findings, and on appeal from the decree.

At the hearing below, plaintiff produced a book on the outside of the front cover of which are the words, "Record of Securities." This book contains a list of different stocks, bonds, mortgages, etc. On the first page, which is Plaintiff's Exhibit "1-a, " under date of August 1, 1928, are entered various items of property, real and personal, and the value of each. The total of these items is $ 320,200. On the inside of the front cover, which is Plaintiff's Exhibit "1-b," are like entries of property and values under date of April 10, 1929. These values total $ 332,345. This book came into the possession of the executors with other documents of decedent and all entries therein are in his handwriting. This is all that appears regarding such book. These Exhibits, 1-a and 1-b were admitted in evidence over defendants' exception. They insist that this was error because that it did not appear that these entries were made in the usual course of business, or that they related to decedent's estate. Neither party has cited an authority bearing on the admissibility of this evidence. The general rule is that entries in diaries or memorandum books which are memoranda, merely, are inadmissible as independent evidence in favor of the party making them. Stockwell v. Stockwell's Estate, 92 Vt. 489, 105 A. 30; Covey v. Rogers, 84 Vt. 151, 78 A. 792; Barnes v. Dow, 59 Vt. 530, 10 A. 258; Lapham v. Kelly, 35 Vt. 195. See, also, Lassone v. Railroad, 66 N.H. 345, 24 A. 902, 906, 17 L.R.A. 525. It is clear that this evidence would not have been admissible in favor of decedent in his lifetime, and that it would not be admissible in favor of his estate. Nor does enough appear to make it admissible for the purpose for which it was manifestly received, namely, to show decedent's belief as to the value of his property on the dates named, since manifestly these memoranda were not made in the usual and regular course of business, neither does it appear that they relate to decedent's then property. This evidence was inadmissible; and the findings respecting decedent's belief regarding the value of his property based on such evidence, which findings were excepted to, must be rejected. The sole bearing of these findings is on the question of whether decedent at the time he made his will did or did not intend the $ 25,000 bequest to plaintiff to be in addition to what she would take under the statute provided they intermarried and she survived him. Since this is so, if the remaining findings, together with the provisions of the...