Winslow v. Smith

• Decision Date: 07 November 1906
• Citation: 65 A. 108,74 N.H. 65
• Parties: WINSLOW v. SMITH.
• Court: New Hampshire Supreme Court

65 A. 108

74 N.H. 65

WINSLOW

v. SMITH.

Supreme Court of New Hampshire. Grafton.

Nov. 7, 1906.

Exceptions from Superior Court; Stone, Judge.

Will contest between Ella A. Winslow and Wilbur F. Smith. A verdict was rendered sustaining the will, and from an order declining to grant a new trial, contestant brings exceptions. Exceptions sustained.

The issues were: (1) Was the testatrix, Lora T. Bosworth, of sound mind when she executed the will? (2) "Was Lora T. Bosworth, on December 13th, A. D. 1904 [the date of the execution of the will], induced to execute this instrument as her last will by undue influence * * * on the part of Ellen F. Smith and others interested in the making of said will?" The questions were drawn by the defendant's counsel and agreed to by the plaintiff's counsel. Two of the plaintiff's witnesses were physicians, who, having shown that they were qualified, testified as experts. The defendant's counsel in his closing argument said: "Well now, Mr. Foreman and gentlemen of the jury, they produce two experts to say she [the testatrix] was not fit at that time to make a will—very good men, men for whom I have great respect, as much respect as I can have for any expert, which I confess is mighty little, because they are employed to serve their clients and paid mighty well for it" The plaintiff excepted. The court said the plaintiff could have the exception, and the defendant's counsel said "Undoubtedly," and continued his argument. There was no evidence relating to the pay the experts received or were to receive for testifying, or to the fees usually paid experts. The counsel did not withdraw his remarks, nor offer an apology for making them. The plaintiff's motion to set aside the verdict because of the prejudicial effect of the remarks was denied, subject to exception. The court did not find whether the remarks had any effect one way or the other upon the jury, nor whether they were prejudicial or misleading. The court Instructed the jury as to what constituted undue influence, and, in substance, that in deciding the question they should take into consideration all the evidence before them bearing thereon. The case was submitted to the jury about 3 o'clock in the afernoon of Wednesday, the day before the annual Thanksgiving, and the jury were instructed, in the presence of both parties and without objection by either, that, if they agreed upon a verdict when the court was not in session, they could seal it up and hand it to the sheriff. The presiding justice and counsel left the town that afternoon. It was understood by the jury and the counsel for both parties that there would be no further session of the court until the following Monday, and there was none. The verdict was handed to the sheriff about 11 o'clock in the evening of the same day. The answer to the first question was "Yes," and to the second "No." After the opening of the court's session Monday morning, and before the verdict was opened, the plaintiff's counsel stated to the court that he had learned that the jury had construed the second question as limiting them to the consideration of testimony showing that the undue influence was exerted December 13, 1901; that they had answered the question upon that construction, although many, if not all, of them were of the opinion that the will was the result of undue influence previously exerted; that they would have decided the question in the affirmative had they understood they were at liberty to consider the evidence of such influence; and that before deciding the question they desired further instructions, but were unable to obtain them because of the absence of the court The counsel moved that the jury be sent back to their room, with instructions as to the meaning of the second question. The court ruled that, inasmuch as the verdict had been delivered to the sheriff and the jury had separated, it was beyond his power to recall the verdict and grant the motion. The motion was accordingly denied, subject to the plaintiff's exception. The plaintiff subsequently filed a motion to set aside the verdict because, among other things, (1) the jury desired further instructions, and were unable to obtain them, and (2) the language of the question was erroneous and likely to mislead the jury, and did, in fact, mislead them. He offered the affidavit of the foreman that further instructions were desired by the jury, and that they construed the second question as alleged, and probably would have come to the opposite conclusion if they had understood that they were to consider the testimony relating to undue influence exerted prior to the day stated in the question, also the affidavit of another person that the foreman stated to him immediately after the trial substantially the same as the foreman stated in his affidavit. The court declined to receive or consider the affidavits and denied the motion, both subject to the plaintiff's exception.

Branch & Branch and Alonzo L. Chamberlin, for plaintiff. Mitchell & Foster and Marshall D. Cobleigh, for defendant.

CHASE, J. 1. The defendant cites Lee v. Dow, 73 N. H. 101, 59 Atl. 374, in support of his position that the verdicts should not be set aside because of the statement of his counsel to the jury in the closing argument, to which the plaintiff excepted. In that case the question of fact, whether the jury were misled and prejudiced by the misconduct alleged, was distinctly presented to the presiding justice by the motion of the excepting party and was decided in the negative. Moreover, the statement objected to was withdrawn by the counsel making it, the jury were instructed by the court to disregard it, and the conduct of the opposing counsel had a tendency to show that he waived the making of further efforts to remove from the minds of the jury the impressions made by the statement. In this case it appears that the court did not pass upon the question of the effect of the counsel's statement upon the minds of the jury, nor upon the character of the question; and there was no withdrawal of the statement or instruction to the jury to disregard it, or any conduct of the opposing counsel tending to show a waiver of further efforts to neutralize its effect. Lee v. Dow certainy does not support the defendant's position. The objectionable statement of counsel was, in substance, that he had "mighty little" respect for experts "because they are employed to serve their clients and paid mighty well for it." The object of the statement obviously was to discredit the testimony of the experts produced as witnesses by the plaintiff. In effect, it was asserted that experts generally are liberally paid hirelings, or persons actuated by mercenary motives, and for this reason the counsel had very little respect for them. If the jury were not asked to consider the fact of the counsel's want of respect for such witnesses, they were asked to entertain a like want of respect because of their venal character. In other words, they were asked to regard the testimony of the physicians...