Frary v. Gusha ( 1886 )

The opinion of the court was delivered by

Royce, Ch. J.

This was an appeal from an order of the Probate Court admitting an instrument purporting to be the will of David Gusha to probate. The plea was want of testamentary capacity because of insanity, and undue influence of A. E. Richardson and others.

The will was executed June 30, 1879, and July 17, 1879, an application was made by the contestant, Alonzo Gusha, for the appointment of a guardian for the testator, upon the ground of his age, infirmity and general incapacity to manage his business. On the hearing both the testator and contestant were witnesses, and the testator testified as to how he had accumulated his property, the amount he had giren his son, the contestant, and that for reasons which he theii gave he did not intend to gire him any more.

The proponent offered to prove that the contestant did not deny the statement so made by the testator, and an exception was taken to the exclusion of the evidence. There was no error in that ruling. The matter in issue upon the hearing was the truth or falsity of the allegations in the application for the appointment of a guardian. The contestant was not bound to admit or deny them. The matters testified to by the testator were collateral to the issue that the court was to determine, and so the evidence offered was not admissible.

After the proponent had introduced evidence tending to show that the testator held his said son in disesteem, the son was permitted, against the objection and exception of the proponent, to show that he was industrious, and had no vicious habits, as tending to show that his father did not hold him in disesteem, or that if he did, it was due to some unnatural condition or influence. The case of Fairchild v. Bascomb, 35 Vt. 398, is full authority for the admission of the evidence for the purpose for which it was offered.

It appeared that previous to 1878 the testator had been a farmer most of the time, and that having sold his farm ho formed a partnership with a Mr. Ames in the saw-mill and lumber business, and remained in partnership with him until about April 1, 1879 ; that he was an old man and unused to the management of so extensive a business, and that in February or March, 1879, he gave one Richardson a power of attorney to do his business, which previous to that time he had managed himself. The contestant was permitted to show the character of Richardson, as a business man, and his pecuniary condition, as bearing upon the capacity of the testator to make the will in question, and we hold that the evidence was admissible.

It was admitted that the testatoi’ committed suicide August 24, 1880. Dr. Fletcher, who had been his physician since 1871, and saw him the last time a few days before his death, was allowed to testify as to his mental condition during the time he attended upon him, and that some portion of the time he was deranged and more or less melancholy. He was then, asked to state from his professional knowledge whether the condition the testator had been in was or was not an indication of insanity, and what the act of suicide, would indicate as to the soundness or unsoundness of his mind. It is said that Dr. Fletcher was improved as a common witness ; but no objection was made to his testifying on the gx-ound that it did not appear that he was qualified to testify as an expert. The objection made to his answering the above question was that it was not a proper question to be put to an expert. The question was properly divisible, and there can be no doubt about the admissibility of an answer to the first part of it. There is a conflict of authority upon the question of the admissibility of such evidence as was called for by the second part of the question. While it has been generally held that the fact that one committed suicide is not conclusive evidence of insanity, it has as generally been held that it was evidence tending to show insanity, and the answer of the witness that he believed testator’s suicide was an insane act, was so treated by the judge in his charge to the jury. The act was an unnatural one ; and the question put to the witness was undoubtedly understood by him as calling for his professional opinion as to the mental condition of the testator when he committed it; and it was probably so understood by the jury. Applying the rule laid down by Judge Aldis in Fairchild v. Bascomb, we think such an inquiry might well be put. It is in substance asking the professional opinion of a medical expert as to what the future mental condition of his patient will be. The trial in Fairchild v. Bascomb, and in Hathaway v. Ins. Co. 48 Vt. 835, proceeded upon that theory of the law. In the last-named case it was held that the same kind of evidence was properly admitted. The only difference we discover between that case and this is in the form of the questions and answers ; so it was not error to admit the evidence.

Counsel for contestant inquired of a witness introduced by him if he had any occasion to look for Richardson’s property. No objection was made to the question, but it is claimed that the answer given to it was improper. It does not appear that any attempt was made to check the witness while the answer was being given, or that the attention of' the court was called to it, and the propriety of allowing an exception may well be doubted. But treating it as having been properly allowed, error cannot be predicated upon the impropriety of the answer. Counsel were not responsible for it, and all that the court could do would be to caution the jury as to the use to be made of it, and that it is presumed was done.

If the facts offered to be shown by Chandler were admissible, and it was error to exclude them (which it is not necessary to pass upon), such error was rendered harmless by the verdict of the jury. The evidence was offered as bearing upon the question of undue influence; the use that the proponent proposed to make of it was to negate the claim made by the contestant that the will was procured by undue influence, and the jury found that it was not so procured.

The judgment is affirmed, and ordered to be certified to the Probate Court.