Town of Londonderry v. Fryor

• Decision Date: 09 March 1911
• Parties: TOWN of LONDONDERRY v. FRYOR.
• Court: Vermont Supreme Court

79 A. 46

84 Vt. 294

TOWN of LONDONDERRY

v. FRYOR.

Supreme Court of Vermont. Windham.

March 9, 1911.

Exceptions from Windham County Court; Willard W. Miles, Judge.

Proceedings by the Town of Londonderry against Charles Fryor. From a decision of the Probate Court appointing a guardian for Fryor as one incapable of caring for himself and his property, he appealed to the Windham County Court, where on a trial by a jury a verdict was returned that Fryor was capable of caring for himself and his property, and plaintiff brings exceptions. Affirmed.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Cud worth & Pierce, for plaintiff.

E. W. Gibson, R. C. Bacon, and E. J. Waterman, for defendant.

HASELTON, J. This was a probate appeal in proceedings brought by the overseer of the poor of the town of Londonderry for the appointment of a guardian of the defendant on the claimed ground that he was not mentally capable of taking care of himself and of his property. P. S. 3159. The verdict of the jury was that the defendant is so capable, and judgment was rendered upon the verdict. The questions brought before us by the bill of exceptions relate to the exclusion of evidence.

One Orris C. Hall testified to associating and conversing with the defendant, and was then asked this question: "From your association with Charles Fryor and conversations you have had with him, the times you have worked with him, the instances you have mentioned here, what do you say as to his mental ability; as to whether or not he has mental ability and is capable of caring for himself and property?" The witness was not allowed to answer this question, and an exception was taken. Very likely it should be considered that the witness was confined to the expression of an opinion based on the "instances mentioned" by him in his testimony; and so if the questioner had stopped with an inquiry as to the defendant's mental ability, and had not asked whether or not he was "capable of caring for himself and property," the question might well have been admissible. But as the question was framed this lay witness was asked to give an opinion on a question of law, and the question was properly excluded. In re Esterbrook's Will, 83 Vt. 229, 240, 75 Atl. 1; In re Blood's Will, 62 Vt. 359, 364, 19 Atl. 770; Chickering v. Brooks, 61 Vt. 554, 563, 18 Atl. 144; Fairchild v. Bascomb, 35 Vt. 398.

One Noble Johnson testified that the defendant for a long time lived in the family of the witness, and he testified as to the peculiarities of Fryor during that time and thereafter. This testimony was not objected to and was calculated to aid the court and jury in applying the law to the facts found. In re Esterbrook's Will, 83 Vt. 229, 234, 75 Atl. 1; Fairchild v. Bascomb, 35 Vt. 398, 417. The witness was then asked this question: "From your observation of his appearance and conduct and speech during the time you have known him, what do you say as to his meutal capability?" The witness was not allowed to answer this question. The question in no way required this lay witness to base his opinion upon the evidence he had given in court, and so the action of the court was correct. One's mental ability is not to be determined by a mere vote of his neighbors and acquaintances. The opinion given must be based upon the testimony of the witness as to facts and circumstances testified to by the witness in order that the jury may give the opinion its proper weight.

One F. F. Churchill testified that for a long time Charles Fryor lived in his family, and further testified as to Fryor's appearance, conduct, conversation, and actions during that time and during a number of years prior thereto. He was then asked: "From his appearance and conduct, conversation and actions, as you have related them here, what do you say as to his meutal capability to care for himself or his property?" The court declined to permit him to answer this question, and was correct in so doing. The witness was properly asked to base his opinion upon the testimony he had given, but was improperly asked to go beyond the expression of an opinion as to mental capacity and to apply some rule of law, we know not what, which may have rested in his mind as to the degree of mental capacity which one must have in order to care for himself and property. In re Esterbrook's Will, 83 Vt. 229, 234, 75 Atl. 1; Fairchild v. Bascomb, 35 Vt. 398, 417.

One De Vere Houghton testified to living near the defendant, Fryor, and of meeting, talking, and...