In re Hathaway's Will , 75 Vt. 137 ( 1903 )

Stafford, J.

The will in dispute was established in the County Court, and the questions before us arise upon exceptions taken by the contestants to rulings and instructions during the trial.

The first question is whether the wife of the person named in the will as executor was properly permitted to testify. Charles H. English, the person so named, drew the will and had the custody of it until after the death of the testatrix, when, as the statute required, he left it with the Probate Court and thereafter had nothing to do with it or with the estate. He never accepted or declined the trust, nor ever gave a bond, nor ever received letters testamentary. A penalty is provided for failing to return a will left in one’s custody, and for failing, if named therein as executor, to signify in writing acceptance or refusal of the trust. V. S. 2357-2359. One neglecting to accept or to give bonds for twenty days after probate is forbidden to intermeddle or act as executor.. V. S. 2377.

In the Probate Court the instrument had been allowed. The only legatees are Benjamin E., Elvira T., and Josephine Howland. The heirs at law are four, of whom two appealed. In such cases the statute requires the appellant to “give notice of his appeal in such manner as the Probate Court directs.” V. S. 2592. And to file in the County Court, with the certified copy of the record in the Probate Court, “evidence that notice has been given to' the adverse party according to the order.” V. S. 2594. Here the Probate Court directed that notice of the appeal should be given by service upon the legatees, which was done. The legatees entered and have alone acted as proponents; while the appellants have appeared and acted as contestants.

Was Mr. English, under these circumstances, the proponent of the will, and a party to the proceeding? If he was, his wife was incompetent as a witness. Crocker v. Chase’s Estate, 57 Vt. 413. In that case the Probate Court directed that notice of the appeal should be given to- the person named as executor in the will, who was accordingly served, and entered and acted in the County Court as proponent. The legatees were not notified, and did not appear as parties. Consequently the executor there stood as proponent, representing the legatees and being the party of record. Here, as we hold, the legatees, and not Mr. English, were the parties of record, proponents of the will; and so, of course, there was no error in permitting Mrs. English to testify.

The next question is whether Mrs. Howland was properly-admitted as a witness. She is one of the legatees, and is the wife of another legatee. The objection urged is that, her husband being interested, she is incompetent under the common law rule; and so she is, unless she is included in the statutory exception Which permits husband and wife to testify “when they are properly joined in the action as plaintiffs or defendants.” V. S- 1241. It is argued that this proceeding is not an action, within the meaning of the statute; but we thinhTthe word was intended to include it, and is broad enough for the purpose. In the case of In Re Nelson’s Will, 70 Vt. 130, 39 Atl. 750, the husband of an heir joined with his wife in an appeal from the allowance, and motion was made to dismiss him as improperly joined; but, it appearing that the decedent left real estate which would come to the appellant wife if the will should be disallowed, he was held to- have such a legal interest in the controversy, by virtue of his marital rights in the real estate, as entitled him to join in the appeal. So here Mrs. Howland was properly joined by virtue of her own interest, and cannot be denied the privilege of testifying for herself, although she thereby testifies for her husband, also, who happens to have a similar interest, — that being the very reason, as we conceive, for the enabling clause above quoted.

One ground of objection to> the will-was that it was the product of undue influence on the part of Mr. English. In support of this claim the contestants showed by Mr. Atwood that about ten years before the will was made he offered the testatrix a sum in cash for certain of her land, which she refused. They then offered to- show that a short time afterwards she sold the land, with some personal property, to Mr. English, on time, for a less sum, but not how much less. The offer was excluded and the contestants excepted, but do not rely upon that exception here. The jury was finally told to leave the Atwood testimony out of consideration, and to this an exception was taken which is still urged. But the state of the evidence was such that the jury could not have found any material fact upon that detached statement,, and there was no error in withdrawing it.

The instrument in question contained the following clause: “It is my will that all the residue of my estate of every kind and description, after paying all the cost of settlement, be turned over to Benjamin E,. Howland, Alvira T. Howland and Josephine Howland in equal shares; that is, one-third to each, — theirs to do with as they please.”

The words, “theirs to do with as they please,” the contestants claimed, and introduced evidence to show, were written with a different pen and with different ink from those used in drawing the remainder of the will. It was conceded that these words, as well as the rest of the instrument, were written by Mr. English, who testified that they were witten before the will was executed. The jury, in a special verdict, found that his statement in this respect was true; and, in view of that finding, we see no merit in the contestants’ exception to the refusal of the Court to charge that the time when these words were written should be considered in determining whether the will was duly executed.

Exception was taken to the refusal of the Court to charge as follows: “The natural claims of kinship are usually recognized by one in meting out her bounty, especially if her kindred be poor, 'and her relations with them have been friendly. If such natural claimants are ignored, it is a circumstance which bears strongly upon the issue of undue influence, as well as mental capacity.”

Without criticizing the request as a general proposition, it is enough to say that it had no such application to the case on trial as to entitle the contestants to have it given. There was nio evidence that the kin were poor, and the undisputed testimony showed such neglect of the testatrix on their part, and such kind and constant attention on the part of the legatees, that a charge in the language of the request would have been much less appropriate than the one given, which we think omitted none of the legal elements.

The Court was asked to instruct the jury that if Mr. English did tell George Raymond, as the latter had testified, that he did not know that the testatrix had made a will, it would tend to show that he was trying to shield both himself and the legatees from suspicion of having unduly influenced the testatrix]'because he would not have said so if there had been nothing to conceal. The request Was properly refused. Mr. English was not a party, but a witness, merely; and in any view it would be for the jury to say, as matter of fact, whether the statement indicated what the contestants claimed, or only that Mr. English had forgotten, or was reticent about disclosing a confidential matter, and not for the Court to say what it indicated, as matter of law.

Judgment affirmed and ordered certified to Probate Court.