Pritchard v. Austin

• Citation: 46 A. 188,69 N.H. 367
• Parties: PRITCHARD v. AUSTIN et al.
• Decision Date: 29 July 1898
• Court: Supreme Court of New Hampshire

46 A. 188

69 N.H. 367

PRITCHARD

v. AUSTIN et al.

Supreme Court of New Hampshire. Hillsboro.

July 29, 1898.

Appeal from probate court Hillsboro county.

Proceedings by Anna L. Pritchard for the probate of the will of Jeremiah White. From a decree admitting it to probate, Arthur M. Austin and others appeal. Affirmed.

Appeal from a decree of the probate court approving and allowing the will of Jeremiah White, on the grounds (1) that the testator was not of sound mind when he executed the will; and (2) that he was induced to execute the same by undue influence, overpersuasion, and artful misrepresentation on the part of his wife, Ann M. White, her children, and others interested therein. Trial by jury. The testator died at Nashua, July 22, 1892, at the age of 71 years. The will under consideration was executed September 18, 1890; and a codicil thereto, July 3, 1891. The plaintiff offered in evidence a former will of the testator, dated December 23, 1882, as tending to show "an expression of his feelings." The defendants objected on the ground of remoteness. The court allowed the will to be received in evidence, and the defendants excepted. The plaintiff offered in evidence photographs of the testator and his wife, Ann M., as tending to show "the character, vigor, temperament, and disposition of these people, as touching the question of undue influence." Evidence was offered tending to show that the photographs correctly represented the subjects, up to very near the last days of their lives, when in fair health. It did not appear when the photographs were taken. The defendants objected to the photographs being shown to the jury without proof of when they were taken. The court received the photographs in evidence, and allowed the jury to examine them, and the defendants excepted. The defendants offered to show that the testator owned over one-quarter of the stock of the White Mountain Freezer Company, and that there were no sales in the open market by which its value could be determined. They offered to show the value of this stock at the date of his death, by showing the net earnings of the company for a series of years, both before and after that date. They also offered to show the value of the plant, and the character of the business. It had already appeared in evidence that the testator owned over one-quarter of this stock, and that there had been sales thereof in open market, with prices given, and the defendants were permitted to submit further evidence upon these points. The plaintiff offered no objection to the defendants showing the net earnings of the company up to the time of the testator's death, but did object to the showing of the net earnings of the company after the testator's death, or of the present value of the stock or plant. The court sustained the objection on the ground, among others, that the evidence was too remote, and the defendants excepted. After the testator's death, in the envelope containing the will in question was found a letter of instruction, without signature, in the handwriting of the scrivener of the will, and addressed to the executrix, directing the successive steps to be pursued in the proving of the testator's will and the settlement of his estate. Subject to the defendants' exception, the plaintiff was allowed to put this letter in evidence, as tending to show, from its nature and the place in which it was found, the condition of the testator's mind. In argument, counsel for the plaintiff stated, in substance, that Mrs. White's death had been hastened by the litigation begun by the defendants, concerning which allegation there was no evidence, and the defendants excepted. Counsel for the plaintiff...