N. Trust Co. v. Perry
| Decision Date | 04 November 1931 |
| Court | Vermont Supreme Court |
| Parties | NORTHERN TRUST CO. v. PERRY. |
It appeared that testatrix had been a resident of the city of Chicago and had bequeathed certain property in trust to a trust company in that city; that company brought suit to recover share of estate paid to defendant, claiming that testatrix had not intended defendant to be a beneficiary; that company's attorney had said that all beneficiaries except defendant were cousins of testatrix; and that defendant's counsel in argument said: "We know from the evidence here that three of them at least * * * were not cousins, and we don't know of but one that was—living in Chicago, the common reputation they have."
It was contended that it was proper to consider that testatrix had in mind the facts mentioned in argument, but there was no evidence that testatrix knew age, occupation, or financial condition of defendant, or anything about his family, whom counsel had also referred to in the argument, which was well calculated to incite sympathy and prejudice of jury.
Court was requested to charge that, where father and son had similar names, and son had used and did use particular initial letter to differentiate him from his father, such fact was important and could be considered by jury, but charge was too indefinite, for it did not indicate when, where, or how the son used such letter.
Exceptions from Orange County Court; Fred G. Bicknell, Judge.
Suit by the Northern Trust Company against Albert G. Perry. Judgment for defendant, and plaintiff brings exceptions.
Reversed and remanded.
Argued before POWERS, C. J., and SLACK, MOULTON, and THOMPSON, JJ.
Wilson & Chamberlin, of Randolph, for plaintiff.
Elwin L. Scott, of Barre, and Wilson, Adams & Keyser, of Chelsea, for defendant.
Flora Perry Ullery, formerly of Chicago, Ill., died in May, 1915, leaving a will which was duly probated in Cook county, Ill. After making several specific bequests, she bequeathed the residue of her estate to the Northern Trust Company of Chicago, in trust, the income to be used for certain purposes, and the principal to be divided eventually in equal parts between eight named beneficiaries, if living; if not, to be equally divided among the survivors. Among the beneficiaries named in this provision was "Albert Perry, of Vermont."
May S, 1929, the trustee, the plaintiff herein, wrote the defendant that under the will of Flora Perry Ullery a certain Albert Perry was then entitled to receive a share of her estate which the trustee was preparing to distribute, and asked him, if he was the person mentioned in such will, to send it an affidavit certifying that fact. On June 5, 1929, the defendant made and mailed to the plaintiff an affidavit wherein he stated that he was the Albert Perry named in the Ullery will and the party entitled to receive a share thereunder. Upon receipt of such affidavit, the plaintiff delivered to the defendant securities and cash amounting to $8,607.06, and he gave it his receipt therefor which is Plaintiff's Exhibit 9. At the time the Ullery will was made, the defendant's father, whose name was Albert Perry, was living, and resided at Randolph, Vt. Some time after the securities and money had been delivered to the defendant as above stated, the plaintiff notified him that he was not the Albert Perry named in the Ullery will and that he was not entitled to receive anything thereunder, and demanded that he return such securities and money to it, which he refused to do. Whereupon this suit was brought. The defendant had a verdict and Judgment below, and the plaintiff brings the case here.
The plaintiff saved numerous exceptions at the trial, only ten of which are now relied upon. These are numbered 1 to 10, inclusive.
Nos. 2, 3, 4, and 6 are not considered because inadequately briefed. In effect, they are not briefed at all, since nothing is said respecting them beyond what was said when they were taken. This we have repeatedly held is insufficient. McAllister v. Benjamin, 96 Vt. 475, 497, 121 A. 263; Raithel v. Hall, 99 Vt. 65, 74, 130 A. 749; Drown v. Oderkirk, 89 Vt. 484, 96 A. 11; State v. Corologos, 101 Vt. 300, 143 A. 284, 59 A. L. R. 1541; Barclay v. Wetmore & Morse Granite Co., 94 Vt. 227, 234, 110 A. 1.
The remaining exceptions are considered in the order in which they are briefed.
I. The plaintiff here notices two exceptions. One is to the exclusion of a copy of a letter which it was claimed was sent by plaintiff to the defendant, marked for identification "Plaintiff's 13," and the other is to the exclusion of a photostatic copy of the plaintiff's trust account, marked for identification "Plaintiff's 13a." All that is said regarding the former is that it was excluded and an exception taken. For reasons already stated, this exception is not considered. The latter is too frivolous to require notice. There was no dispute about the plaintiff's account or the amount that the defendant received. Since this was so, the exclusion of this document, even if admissible, could not possibly have harmed the plaintiff.
The defendant testified to a talk that he had with Lomira Perry, another beneficiary under the Ullery will, on the day he received the legacy; whether before or after he received it did not appear. On cross-examination, he testified that he told her that he was the Albert Perry mentioned in the will, and that he had no reason for not telling her that he was getting about $8,000 except that he did not think it was any of her business. He was then asked: This was held inadmissible as matter of law. Whether this was error we need not inquire since, if so, it was manifestly harmless, in the circumstances. Not only had the witness already covered the substance of this inquiry, but he later testified, in effect, to the same thing.
VII. In his argument to the jury, defendant's counsel, referring to what was called the distribution sheet, which was marked for identification "Plaintiff's 13b,"...
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