Titus v. Gage

• Decision Date: 31 May 1896
• Citation: 39 A. 246,70 Vt. 13
• Parties: TITUS v. GAGE.
• Court: Vermont Supreme Court

39 A. 246

70 Vt. 13

TITUS

v. GAGE.

Supreme Court of Vermont. Caledonia.

May Term, 1896.

Exceptions from Caledonia county court; Ross, Chief Judge.

Proceeding by I. P. Titus to probate an instrument as the will of Lydia P. Fuller, to which Henry F. Gage objected on the ground of incapacity and undue influence. From a judgment of the probate court admitting the instrument to probate, contestant appealed to the supreme court. There was a verdict and judgment for proponent, and contestant excepted. Reversed and remanded.

The contestant, having introduced evidence that the sister of the testatrix had been insane, propounded a question to an expert witness, upon the supposition that there was hereditary insanity in the family. The proponent objected, and the court remarked that "there was nothing to show that there was insanity back in the line," adding: "It was not proper to speak of it as 'hereditary'; it was developed in her sister." The contestant inquired if the court so ruled as a matter of law; to which the court replied that it was not making a ruling, but merely stating its understanding of the strict meaning of the term. The questions referred to in the opinion as having been put to the witnesses Dutton and Houston were as follows: To the witness Dutton: "Something has been said about her stories. What do you say about their improbability or impossibility, on that line?" To the witness Houston: "Whether or not you understood the statements made by Miss Fuller, relative to these matters of her property and her neighbors, were improbable and impossible." And further: "What is Mr. Wheatley's character?" Mr. Wheatley was one of the neighbors who was said to have been accused by the testatrix of theft The questions were excluded.

Taylor & Dutton and B. E. Bullard, for contestant.

W. P. Stafford, for proponent.

MUNSON, J. The testatrix left five dollars to the contestant, her sole heir at law, and the remainder of her property to the "Old Ladies' Home," in St. Johnsbury. There was no institution of that name in existence, and the proponent failed to show in his opening what institution was intended. In this situation of the case it was within the discretion of the court, and a wise exercise of its discretion, to permit the proponent to make good the oversight at the close of his rebuttal.

The contestant excepted to what the court said during the introduction of testimony in regard to the use of the term "hereditary insanity"; but the court expressly said that its suggestion was with reference to the exact application of the term, and that no ruling upon the subject was intended. This being the case, it is not important to consider the correctness of the view expressed.

The offer to show that the father of the testatrix was in early life a man of intemperate habits, without any further offer being made in connection with it, was properly excluded. The connection between the intemperance of the parent and the insanity of the child is not so obvious and well recognized as to make evidence of the one admissible in proof of the other, without the support of medical testimony upon the subject.

If it was error to restrict the testimony of McKnight as the court attempted to do, the error cannot avail the contestant, for the witness ignored the restriction, and answered as to the whole matter.

The questions asked of the witnesses Dutton and Houston were properly excluded, but the contestant was entitled to show the fact which the examination was apparently designed to elicit. The contestant claimed that the testatrix was subject to insane delusions, and that among the delusions...