Northern Trust Company v. Albert G. Perry

• Decision Date: 04 November 1931
• Citation: 156 A. 906,104 Vt. 44
• Parties: NORTHERN TRUST COMPANY v. ALBERT G. PERRY
• Court: Vermont Supreme Court

156 A. 906

104 Vt. 44

NORTHERN TRUST COMPANY v. ALBERT G. PERRY

Supreme Court of Vermont

November 4, 1931

May Term, 1931.

Inadequate Briefing---Harmless Error---Arguments of Counsel---Record Controlling as to Statements Made---Improper Argument---Refusal of Request To Charge Not Presented Until After Charge Given---Indefinite Request To Charge.

1. Exceptions as to which nothing is said beyond what was said when they were taken, held inadequately briefed and not for consideration.

2. In s uit to recover value of money and securities delivered by plaintiff trust company, trustee under will, to defendant as beneficiary thereunder, on ground that it was defendant's father and not defendant who was in fact beneficiary, held that exclusion of photostatic copy of plaintiff's trust account, if error, was harmless, since there was no dispute about the account or amount received by defendant.

3. Exclusion of question on cross-examination, if error, held harmless, where witness had already covered substance of inquiry and later testified in effect to same thing.

4. On exceptions, record is controlling as to statements claimed to have been made by counsel in argument.

5. Argument of counsel as shown by record, about reputation of Chicago, in which it appeared that witness and other beneficiaries of trust in suit lived, in commenting upon witness' testimony, while highly improper, held not to constitute reversible error.

6. In suit to recover value of money and securities delivered by plaintiff trust company, trustee under will, to defendant as beneficiary thereunder, on ground that it was defendant's father and not defendant who was in fact beneficiary, argument by defendant's counsel that defendant was fifty-five years old, would soon be unable to work, and that money left by will would come in handy to him and that it was proper for jury to consider that testatrix had this fact in mind, held prejudicial error, only issue being whether defendant or his father was beneficiary and there being no evidence that testatrix knew age, occupation or financial condition of defendant, or anything about his family.

7. Refusal of request to charge, not presented until conclusion of charge, held not error.

8. Where issue was as to whether father or son was beneficiary under will, their names being similar, request to charge that son had used and did use initial letter to differentiate him as individual from father, and that such fact was important and to be considered by jury, held too indefinite to require notice, not indicating when, where, or how son used such letter.

ACTION OF TORT to recover value of money and securities delivered by plaintiff trust company, trustee under will, to defendant as beneficiary thereunder, on ground that it was defendant's father and not defendant who was in fact the beneficiary, and that defendant obtained property by fraud and deceit. Plea general issue. Trial by jury at the November Term, 1930 Orange County, Bicknell, J., presiding. Verdict for the defendant, and judgment thereon. The plaintiff excepted. The opinion states the case.

Reversed and remanded.

Wilson & Chamberlain for the plaintiff.

Elwin L. Scott and Wilson, Adams & Keyser for the defendant.

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

OPINION

SLACK

Flora Perry Ullery, formerly of Chicago, Illinois, died in May 1915, leaving a will which was duly probated in Cook County, Illinois. 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 8, 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 received 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, Vermont. Sometime 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.

Numbers 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.

V. 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 didn't think it was any of her business. He was then asked: "Q. And you had no particular reason for not telling...