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Page. New Haven (City of), Whit- State ex rel. Birdsey v. ing v.
134 New York, Housa. & North- State v. Byrne, .
273 ern R. R. Co., Mead v.. 199 State v. New Haven & Niles, Strong v..
52 Northampton Co., 391 Norwalk (Town of), Hor
State v. Sargent,
378 ton v. 237 State v. Shields,
236 Noyes v. Byxbee, 382 State, Shields v.
266 Steamer Starin, Contractors P.
for Union Wharf v.. . 585 Perry v. Post,
354 Stedman v. Am. Mutual Peters v. Stewart,
377 Pond v. Cooke, 126 Stevens, Camp v.
507 Pond, Pratt v. 386 Stevens v. Giddings,
103 Post, Perry v.
354 Stewart, Peters v. Pratt v. Pond, 386 Stone v. Hills,
44 Prindle v. Holcomb, 111 Stratton, Williams v. 566
Strong v. Niles,
T. Raymond v. Hillhouse, 467 Thorp, Sanford v.
241 Reed, Charter Oak Bank v. 391 Trowbridge, Bosworth v.. 161 Robbins, Lyon v.
513 Trowbridge v. Bosworth,. 166 Rundle, Allen v. 528 Tupper, Atwater v.
U. Sanford u. French,
101 Union Wharf (Contractors Sanford v. Thorp,
241 for) v. Steamer Starin, 585 Sargent, State v.
V. Schindler v. Muhlheiser,. 153
Vansands, Davis v.
600 Shepard v. New Haven & Northampton Co.,
54 Shields, State v.
256 Wallingford (Town of) v. Shields v. The State, 266 Hall,
350 Shipman, Grain v. 572 Ward v. Dick,
235 Smith v. Bank of New
Ward v. Donovan,
416 Washington School DisSnow, Colgrove v. . 88 trict, White v.
59 Stanley Rule & Level Co. Watson, Blake v.
323 v. Bailey,
464 Weed v. Borough of GreenStarks, Drake v. 96 wich,
59 Welton v. Town of Wolcott, 329 Whiting v. City of New Werner, Hayes v.
303 West Middle District, City Whiting, Clark v.
149 of Hartford v.
462 Williams v. Stratton, . 566 Wheeler's Appeal from Wolcott (Town of), WelProbate, 306
329 White, Alsop v.
Z. White v. Washington School
Zaleski v. Clark,
“ 44, p. 328, seventeenth line-for deeding read desiring.
COUNTIES OF HARTFORD, MIDDLESEX, AND TOL
MAY TERM, 1877.
Park, C. J., CARPENTER, PARDEE, LOOMIS, AND GRANGER, Js.
WILLIAM DRAKE AND OTHERS' APPEAL FROM PROBATE.
Where a testator, leaving an estate of $14,000, with no family, made a will five
days before his death and while suffering from severe disease, by which, after giving two of his brothers $1,000 each, $1,000 to certain other relatives and $1,000 to a friend, he gave the residue of his estate to a church in the town where he lived; and it appeared that the will was drawn by H, who was a vestryman of the church and who was the only person who conversed with him on the subject, and who was Iso made sole executor; that three brothers and a sister of the testator lived within a few miles of him and were not notified of his being dangerously ill until shortly before his death and after the will was executed; that H was deeply interested in the welfare of the church and a liberal contributor to its support; that he and another vestryman were two of the witnesses to the will and a brother-in-law of A the third witness; and that the will described certain half nephews and a half niece of VOL. XLV.
Drake's Appeal from Probate.
the testator as his brothers and sister;-it was held that the circumstances were such as to create a suspicion of undue influence, which might be con. sidered by the jury without any direct proof of such influence, and to require
explanation on the part of the persons propounding the will. Whether the two vestrymen were competent witnesses to the will: Quære.
APPEAL from a decree of a probate court approving the will of Henry Drake, deceased; taken to the Superior Court in Hartford County, and tried to the jury, upon the issue of unsoundness of mind of the testator and undue influence and fraud practiced upon him, before Culver, J. The will was as follows:
“I, Henry Drake, of Windsor, county of Hartford, Connecticut, of sound and disposing mind and memory, and mindful of the uncertainty of human life, do make, publish and declare the following as and for my last will and testament.
“ First. I give and bequeath to my brothers, William Drake and Timothy Drake, to each of them, the sum of one thousand dollars to be paid by my executor from my estate.
“ Second. I give and bequeath to my young friend, Miss Jenny D. Lavery, also the sum of one thousand dollars, to be paid as above from my estate.
“Third. To my brothers Nathan Drake and Samuel Drake, also to my sister, Mrs. Olive Mills, Mrs. Eliza Wells, and Mrs. Ellen Kellogg, to each one of them the sum of two hundred dollars.
“ Fourth. To my friend Mr. Lomax, for his accommodation and comfort, I give so much land from my lot as is required to make uniform the line of Mr. Marble's land, the same to be continued to the street line. And I direct my executor to make suitable conveyance by deed to perfect said title.
“ Fifth. All the rest, residue and remainder of my property, real and personal, I give and bequeath to the vestry and wardens of Grace Church, Windsor, and to them in office, to be held by them as trustees, the income and rents only to be used by them for the support of the ministry of said church in its mission and worship. And I require said wardens and vestry to exercise great care in its investment, seeking security rather than large income for the same. Said fund to be known as the Henry Drake fund for all time.
Drake's Appeal from l'rolate.
“I hereby constitute and appoint my friend H. Sidney Hayden, of Windsor, executor of this my last will and testament.
“Witness my hand and seal this 10th day of November, 1874, at Windsor.
HENRY DRAKE. [L. S.] ” The will was witnessed by Charles N. Barber, Osbert B. Loomis, and H. S. Hayden.
It appeared upon the trial that two of the subscribing witnesses to the will, H. Sidney Hayden, and Charles N. Barber, were at the time of the execution of the same and still were, vestrymen of said Grace Church of Windsor, and members of the wardens and vestry of said Grace Church; also that Osbert B. Loomis, the remaining witness, was the brother-inlaw of Hayden. Whereupon the appellants requested the court to charge the jury that said Hayden and Barber were interested in the matter of the will, and not legally competent to subscribe as witnesses or attest the same; but the court did not so charge the jury, and gave the jury no instruction on that subject.
The appellants also requested the court, if it should be of opinion that said Hayden and Barber were legally qualified to witness the will, to charge the jury that as they were vestrymen of said Grace Church, as a legatee under the will, the situation and conduct of the witnesses to the will required explanation; that their testimony was subject to suspicion, and that the appellees were bound to show by the preponderance of evidence that every thing connected with the instrument was free from impropriety and any unfairness. But the court did not so charge the jury.
It also appeared upon the trial that Fayden, at the request of the testator, drafted the will, and was the only person who claimed to have conversed with the testator, or to have had any interview with him about the same; that the will was drawn by Hayden and signed by the testator about five days before his death, and while he was suffering from severe disease, in the absence of all his relatives, although he had three brothers and one sister, living in the city of Hartford next adjoining Windsor; and that none of said relatives had any