Smith's Ex'r v. Smith

• Decision Date: 25 May 1895
• Citation: 32 A. 255,67 Vt. 443
• Parties: PHELPS B. SMITH'S EXR v. NANCY M. SMITH, APT
• Court: Vermont Supreme Court

32 A. 255

67 Vt. 443

PHELPS B. SMITH'S EXR v. NANCY M. SMITH, APT

Supreme Court of Vermont

May 25, 1895

OCTOBER TERM, 1893

Appeal from a decree of the probate court for the district of Addison establishing the will of Phelps B. Smith. The contestant pleaded undue influence and mental incapacity. Trial by jury at the June term, 1892, Addison county, TAFT J., presiding. Verdict that the instrument is the will of Phelps B. Smith. The contestant excepts.

Judgment reversed and cause remanded.

Henry Ballard and Stewart & Wilds for the contestant.

OPINION

MUNSON

To establish the invalidity of a will on the ground of undue influence it must be made to appear that the influence was exerted upon the very act of making the will and that it was such as to induce the testator to act contrary to his wishes, and to make a disposition of his property which he would not have made if left entirely to his own judgment. Foster's Exrs. v. Dickerson, 64 Vt. 233, 24 A. 253. The law does not permit this undue influence to be inferred from the mere fact that one who is to profit by the instrument had an opportunity to impress his will upon the mind of the testator. There must be some evidence tending to show that an undue influence was actually exerted. But the fact of its exercise may be found without the aid of direct testimony. It follows that when there is evidence of circumstances which have a legitimate tendency to prove that undue influence was used, the case must be submitted to the jury.

The testator's mother and a daughter eight years of age were his only lineal relatives at the time the will was made. His father and his wife had died about a year before that time. The testator had been engaged in settling his father's estate, and had been assisted therein by Cyrus Smith, a cousin, and D. H. Bennett, a second cousin--the beneficiaries of his will who are claimed to have unduly influenced its making. The testator had used intoxicating liquor freely for nine years, and had for some time been a confirmed drunkard. Witnesses differed widely as to the effect produced upon him by this habit. For the purposes of our inquiry the testimony most favorable to the contestant must be taken to be true. According to this, the testator's nervous system was broken down, his mind and memory seriously impaired, and his will power weakened. He had become unlike his former self in demeanor, and apparently in character. He was vulgar and profane in the presence of his mother and daughter. He sometimes threatened suicide when morose and despondent from the effects of drink. He was under the immediate influence of liquor the greater part of the time for several weeks before the will was executed.

Cyrus Smith, the residuary legatee, was a near neighbor of the testator, a frequent visitor at his house, and a friend whom he had long been accustomed to consult concerning his general business. Smith had interviews with the testator at the testator's house on fourteen days during the six weeks preceding the execution of the will, which he testified were concerning the business of the father's estate. The last of these occasions was two days before the will was executed at which time he was alone with the testator about an hour. In pursuance of a request made at this interview, he went to the testator's house the day the will was executed, and was then advised with by the testator in regard to some papers which he wished to execute on that occasion, and did execute before signing the will. Although at the house, Smith was not present when the will was signed, having left the room a few minutes before, for what reason he was unable to state, unless it was because he supposed that the testator's will was to be executed.

The will was drawn, and its execution attended to by D. H Bennett, the other legatee mentioned. About a month before this the testator had executed another will drawn by Bennett, which the proponent's evidence tended to show was prepared from memoranda dictated by the testator, and executed without any attempt at secrecy. That will was the same as the succeeding one, except that...