Sargent v. Burton

• Decision Date: 29 November 1901
• Citation: 52 A. 72,74 Vt. 24
• Court: Vermont Supreme Court
• Parties: SARGENT et al. v. BURTON et al.

52 A. 72

74 Vt. 24

SARGENT et al.

v. BURTON et al.

Supreme Court of Vermont. Windsor.

Nov. 29, 1901.

Appeal in chancery, Windsor county; Start, Chancellor.

Bill by Charlotte Sargent and other heirs at law and representatives of Prosper B. Slack against Edna Burton, grantee, and Charles B. Stone, administrator of said Prosper B., to set aside a deed. From a decree overruling the exceptions to a master's report and dismissing the bill, orators appeal. Affirmed.

Argued before TAFT, C. J., and ROWELL. TYLER, MUNSON, WATSON, and STAFFORD, JJ.

Gilbert A. Davis, for orators.

J. C. Enright and H. H. Blanchard, for defendants.

ROWELL, J. This is a bill to set aside a deed from father to daughter, and an agreement between them for his life support by her, made at the same time and as a part of the same transaction, for that he had not sufficient mental capacity to execute them. The master admitted testimony to show that soon after the transaction the grantor said he had made a trade with his daughter to take care of him; that she was coming up to take care of him during life; and that he had given her all he had except his team, which he was going to have himself. It does not appear for what purpose this testimony was admitted. But if it was admissible for any purpose, its reception was not error; and that it was admissible on the question of mental capacity cannot be doubted. Thus in Howe v. Howe, 99 Mass., at page 98, it is said that evidence that a grantor remembers what he has done, and afterwards speaks of it, and does not express regret nor dissent, is admissible to show that he understood his act at the time, and that he ratifies it. The draftsman of the papers —an old neighbor of the grantor's—testified to his long and intimate acquaintance with him, and, after describing his condition, and stating what was said and done when the papers were made and executed, he was asked, against the orators' objection, from what he saw of the grantor at the time to which he had testified, what the condition of his mind was,—whether sound or unsound,—and answered that to all appearance he should say he knew what he was about, and what he wanted, when the papers were made, and that he should say "he was competent to make the writings." This last statement is now objected to as inadmissible and vitiating. But it was not responsive to the question, which was proper, and was not the fault of the examiner nor of the master; nor was it objected to before the master. As a general rule, an improper answer to a proper question does not vitiate. In jury trials, if it affirmatively appears that the court instructed the jury to disregard the answer, the difficulty is cured; and, if it does not so appear, it will be presumed that the court gave such instruction, for that was its duty. It is said in Houston v. Russell, 52 Vt., at page 117, that, though it should affirmatively appear that the court did not so instruct, this court would be reluctant to reverse the judgment unless the excepting party requested such instruction. The proceedings of referees are presumed to be correct, both in matters of law and of fact, and the party seeking to set them aside must show error. Martin v. Town of Wells, 43 Vt. 428. The same presumption should be made in favor of the proceedings of special masters, and therefore we...