Whitman v. Morey

Citation63 N.H. 448,2 A. 899
PartiesWHITMAN v. MOREY and another.
Decision Date20 March 1886
CourtSupreme Court of New Hampshire

Appeal by the plaintiff from a decree by the judge of probate disallowing the will of Rachel Sargent. The issues were: (1) That the testatrix was not of sound and disposing mind; (2) that she was induced to execute the instrument by undue influence on the part of the plaintiff, of his wife, and of others interested in the making of the same; (3) that it was not signed and sealed by her, or by any person in her presence and by her express direction. The will was executed December 12, 1881, and the testatrix died on the fifteenth of the same month, at the age of 70 years, unmarried and without children. She left three sisters and several nephews and nieces, (including the plaintiff.) She gave legacies of one dollar to each of her sisters, and to each of her nephews and nieces, and made the plaintiff her residuary legatee. The estate amounted to about $3,700. The defendants, the nominal legatees, introduced evidence tending to support each of the issues, and the plaintiff's evidence tended to sustain the will.

One Strong, called by the plaintiff, testified to the execution of the will, and to writing it himself. He also testified that, in reply to his question, the testatrix said she desired to give her property to the plaintiff and, subject to the defendants' exception, that he understood, in order to have the will operate to give the property to the plaintiff, it would be necessary to name all the heirs of the testatrix, and he proceeded so to name them in the will without any specific direction. On the cross-examination of Strong, the defendants read portions of his deposition, previously taken by them, to contradict his testimony on the stand. In his deposition he testified that the names of the legatees were given him by the plaintiff; that the testatrix did not suggest to him any of those names; and that when he read the will to her she said it was as she wanted it. The defendants also read portions of the deposition relating to the mental and physical condition of the testatrix. Subject to the defendants' exception, the plaintiff's counsel read portions of the deposition relating to the matters concerning which the defendants had read, and also relating to a conversation between the plaintiff and Strong as to the will.

The plaintiff, having called two of the witnesses to the will, was permitted to read it to the jury, the court understanding that the other witness, Tillotson, was not within the state, and the defendants excepted. Immediately thereafter, it appearing that Tillotson was in attendance, the plaintiff was directed to call him as a witness, which was done, subject to the plaintiff's exception. It appearing to the court that Tillotson was hostile to the plaintiff and to the will, the plaintiff was permitted to examine him, as a witness called by the other side, and to contradict his testimony, against the defendants' objection. Among other things, he was inquired of whether he had not stated to Mrs. Pierce that the mind of the testatrix was bright and clear to the last; to Dr. Blair, that she had made a will, and given her property to the plaintiff, and that it was all right; and to one Russell, that she was satisfied that the plaintiff was honest, and became reconciled to his conduct in a certain transaction. The witness denied making any of these statements, and was contradicted by the parties above referred to; to all of which the defendants excepted.

The title of the farm on which the testatrix lived was formerly in David Whitman, and at one time after his death it was in doubt whether he had conveyed ft to Samuel Whitman, (under whom the testatrix claimed under a bond;) and if so whether the deed had been lost and not recorded. The testatrix learned that the plaintiff claimed the farm as belonging to the estate of his father, David, and thereby became offended with him. Tillotson testified that she employed him to examine the records, and that he found the deed from David to Samuel was recorded; that the register gave him a memorandum of the volume and page of the record, which he showed to her; and that thereupon they had a talk about the matter. On cross-examination the defendants offered the memorandum in evidence, but the court excluded it as immaterial. On the plaintiff's direct examination, he stated that the place on which the testatrix lived and died was the one above referred to; and the defendants excepted on the ground that the deed was the best evidence of what it conveyed.

The defendants' evidence tended to show that the testatrix said the plaintiff stole oats from Samuel's field; that the plaintiff had neglected her in the management of her farm affairs; and that he had cruelly treated a Mitchell boy, who was living with him,—all of which was denied by the plaintiff, subject to exception. Also subject to exception, the plaintiff testified from his own knowledge as to the sources from which the testatrix's estate came. The ground of the exception was that the probate records were the best evidence.

Mrs. Morey, a sister of the testatrix, lived with and was supported by her two sons. Mrs. Pierce, a witness for the plaintiff, who had lived with the testatrix, testified, subject to exception, that she had always heard her speak unfavorably of the boys on account of their drinking habits, and that the testatrix was favorably inclined to the plaintiff; but she could not state the precise language she had heard her use in regard to him, but from the impression she got from what the testatrix said she inferred that he was her favorite, and would get her property.

Mrs. Tillotson, a witness for the defendants, stated on her redirect examination that the plaintiff's wife told her that the Morey boys were drinking people. On recross-examination she testified, subject to exception, that she had heard the same thing from other sources. Some evidence was introduced on both sides, on the question of whether or not the plaintiffs wife was a drinking woman.

The court declined to give the following instructions requested by the defendants, and they excepted: (1) That the influence must be strong enough to control free agency to avoid a will, consequently much depends on the strength of mind of the person making the will; (2) that when it appears that the efforts to procure a will were made by interested parties, or those who acted in their behalf, and the will seems to have been the result of such efforts, and is unreasonable and unjust in its provisions, it is natural and right to conclude that the influence did destroy free agency, or it would not have produced such results; (3) that where a will is unreasonable in its provisions, and inconsistent with the duties of the testator, with reference to his family and property, this will impose upon those claiming under it the necessity of giving some reasonable explanation of why it is made so. On the issue of undue influence the court instructed the jury in substance as follows: Whatever destroys free agency, and constrains a person to do what is against his will, and what he would not do if left to himself, is undue influence, whether the control be exercised by physical force, threats, importunity, or any other species of mental or physical coercion. Undue influence which will avoid a will is the use of such appliances and influences as take away the free will of the testator, and substitute another's for his, so that in fact the instrument is not the expression of the wishes of the testator, but of the wishes of another. A testator may properly receive the advice, opinions, and arguments of others, if, after all, he is not thereby controlled to the extent of surrendering his free agency and yielding his own judgment or will. To vitiate a will by reason of undue influence the influence must amount to force and coercion, and be not merely the influence of affection, or the desire of gratifying another. The jury may consider the state and condition of Mrs. Sargent at the time of making the will, because it is obvious that one sick in body or enfeebled in mind may be coerced by an influence that would be insufficient to take away the exercise of free agency in another strong of body and in mind. It is proper to consider the circumstances surrounding Mrs. Sargent and the Whitmans and her other relatives, and the acts of the Whitmans at the time the will was made, and the reasonableness of its provisions.

The trial occupied some nine days. At the close of the charge the court referred to the length of the trial, and said to the jury that in contemplation of the law a verdict ought to be returned by juries in all cases submitted to them. The instructions in Ahearn v. Mann, 60 N. H. 472, 473, were then given, and the defendants excepted.

The jury returned a verdict for the plaintiff upon all the issues, which the defendants moved to set aside. The motion was denied, and the defendants filed this bill of exceptions.

Aldrich & Remick and Chapman & Lang, for defendants.

Bingham, Mitchells & Batchellor and Drew, Jordan & Carpenter, for plaintiff.

SMITH, J. 1. The remark of Strong in his testimony that "he understood, in order to have the will operate to give the property to the plaintiff, it would be necessary to name all the heirs of the testatrix," was competent evidence to show how the nominal legacies of one dollar got into the will. The will itself is competent evidence on the question of sanity. The evidence objected to was competent for either party. It tended to show that the nominal legacies were not inserted by Strong by direction of the testatrix.

2. Strong, a subscribing witness to the will, and the person who wrote it, was called by the plaintiff, and testified to the execution of the will, and to the circumstances attending its execution. For the purpose of contradicting him the defendants read detached portions of his...

To continue reading

Request your trial
29 cases
  • State v. Mannion
    • United States
    • New Hampshire Supreme Court
    • February 1, 1927
    ...presents no question of law. State v. Roach, 82 N. H. 189, 190, 131 A. 606; Dow v. Dow, 77 N. H. 150, 151, 89 A. 450; Whitman v. Morey, 63 N. H. 448, 456, 2 A. 899; Gerrish v. Gerrish, 63 N. H. 128; Bundy v. Hyde, 50 N. H. 116, During the cross-examination which followed, the witness stated......
  • State v. Chambers
    • United States
    • Idaho Supreme Court
    • February 19, 1904
    ...v. Georgia, 83 Ga. 539, 10 S.E. 239; Cranston v. New York Central, 103 N.Y. 614, 9 N.E. 500; Ahearn v. Mann, 60 N.H. 472; Whitman v. Morey, 63 N.H. 448, 2 A. 899. J. Sullivan, C. J., and Ailshie, J., concur. OPINION STOCKSLAGER, J. The defendant in this case was convicted in the district co......
  • Bedford School Dist. v. Caron Const. Co., Inc.
    • United States
    • New Hampshire Supreme Court
    • December 30, 1976
    ...testifies at all, will be the defendant's witness, and under the common law rule a party may not impeach his own witness. Whitman v. Morey, 63 N.H. 448, 2 A. 899 (1885). If this court does permit impeachment, the plaintiff argues that the jury should be told only that the architect has a pe......
  • People v. Elco
    • United States
    • Michigan Supreme Court
    • May 29, 1903
    ... ... Eq. 291, 46 Am. Dec. 53; ... Harden v. Hays, 9 Pa. 151; Dennett v. Dow, ... 17 Me. 19; Shorey v. Hussey, 32 Me. 579; Whitman ... v. Morey, 63 N.H. 448, 2 A. 899; Thornton's ... Ex'rs v. Thornton's Heirs, 39 Vt. 122. The ... exception recognized by these authorities is ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT