ÆäÀÌÁö À̹ÌÁö
PDF
ePub

Livingston's Appeal from Probate.

with) to produce the will and to prove its execution and the capacity of its author, by the evidence of one or more of the subscribing witnesses, (Field's Appeal from Probate, 36 Conn., 277,) and that the appellants, by filing their single reason of appeal, gave notice to the appellees that the only ground of objection to the will upon which the appellants proposed to offer evidence was that of undue influence, and that they thereby limited themselves to the introduction of evidence, either in chief or rebuttal, to support that ground of objection; but that they did not, and could not, thus change the statutory issue as to the validity of the will, or relieve the appellees from the burden of the production of that formal proof, by attesting witnesses, of due execution and testamentary capacity, requisite in the court of probate, and equally so in the appellate court when acting as a court of probate on the appeal. Practically then, under the pleadings as they stood, it was the duty of the appellees to introduce testimony by subscribing witnesses to prove such execution and capacity, and the right of the appellants to cross-examine such witnesses, but not to introduce evidence in contradiction; then to go forward with their own evidence as to undue influence, which the appellees would have a right to meet with contradicting evidence, and finally, after the evidence was closed, it was the duty of the appellees to claim the will valid, and the right of the appellants to deny such validity, on any ground justified by the evidence. The fact that in this case, as was true also in Comstock v. Hadlyme Eccl. So. and St. Leger's Appeal from Probate, supra, the court of probate had sustained the will, which decree was valid until reversed, was not material. If the appeal had been withdrawn or dismissed in the Superior Court, as the parties might have consented that it should be, the decree would have remained valid; but the verdict of the jury, and the judgment of the court thereon, cannot be based upon consent, but must be supported by evidence. We do not mean to say that the court might not, upon proper pleadings presenting an issue of law, without evidence have rendered a judgment affirming the decree of the court of probate and dismissing the appeal. What we do mean to say is merely

Livingston's Appeal from Probate.

what this court has already said in the cases which we have cited, that where the issue of facts, relating to the validity of a will, is tried to a jury, there is but one main issue, and that the statutory one, to which all other issues are and must be subordinate. It is the same issue, whether the will was allowed or disallowed by the court of probate, and whether the judgment sustaining the will be one of affirmance or of reversal of the decree of that court. The court below, therefore, ruled correctly. And this disposes of the first reason of appeal.

There are several other reasons of appeal, but most of them may be very briefly treated. The second of these reasons relates to a declaration by one Major Beebe, a nephew of the testatrix, and a legatee under the will, by whose undue influence the same was claimed to have been procured. The ruling complained of, excluding such evidence, was based upon the opinion of this court in Dale's Appeal from Probate, 57 Conn., 127, and appears to have been clearly within the principle of that decision; for in this case, as in that, there were other legatees, not jointly interested with the person whose alleged declaration was sought to be introduced, or in privity with him, whom the verdict would have affected. It is true that the testimony was only claimed as affecting his interest in the will, but we think the court was correct in holding that the instrument was of such a nature as not to permit this, and that, as was said in Dale's Appeal, of necessity the use of the admission would be in effect to use it against all other legatees. Such would clearly have been the practical operation, since the contest was against the whole will, and the claimed statement related to the will as a whole.

The third reason of appeal is based upon the exclusion of similar testimony, though more remote, and the rejection of which can also be justified on other grounds. It concerned a declaration, or act, or both, of Beebe, having no reference to the testatrix whatever. The same may be said of the fourth reason, which relates to a matter entirely immaterial and irrelevant.

Coming now to the fifth reason, a witness, having testified

Livingston's Appeal from Probate.

to a conversation with the testatrix, and as to what was said in that conversation, about Major Beebe and his treatment of the testatrix, stated that she found and read to the testatrix a letter to the testatrix written by a third person, in which there was reference to Major Beebe's conduct towards the witness, his treatment of the testatrix, and his influence over her, and to a great many matters all bearing on that point, and that every point in the letter was discussed in the conversation, which conversation was called for and detailed by the witness without objection. The letter was then offered, objected to, claimed as a part of the conversation, and excluded by the court. This ruling we think correct. The letter was not a part of the conversation, although such conversation, as testified to, took place in reference to it. The testimony of the witness is given in the finding, and shows that there was no occasion to introduce the letter as explanatory of what was in fact said. Had there been a necessity for explanation it could have been met and overcome in a far less objectionable way than by introducing to the jury such hearsay evidence as the opinions and statements of an outside party. This disposes of the fifth reason of appeal.

The sixth reason of appeal is as follows: "The court erred in not charging the jury, as claimed and requested by the appellants, that if any portion of the will was obtained by undue influence, notwithstanding the fact that said Beebe himself was not benefited by his own act, but exercised his power and dominion over his aunt, the testatrix, improperly for the benefit of another, that portion of the will so procured must fail." By reference to the record it appears that such a claim was made by counsel for the appellants in their argument, but that they made no formal request, either orally or in writing, that the court would charge accordingly. Nor did they particularly call the attention of the court to the claim. Under these circumstances the action of the court níay be vindicated on the ground that the instructions were not properly called for. Kellogg v. City of New Britain, 62 Conn., 241. But we prefer to place our decision on the further ground that the request, although not in exact terms, as is never essential, was substantially complied with.

Livingston's Appeal from Probate.

We come now to the seventh reason. The will was drawn by the attorney of the testatrix, Edward B. Whitney of New York, who was named therein as executor and trustee, without bond, and the appellants asked the court to charge the jury as follows: "That it having been shown in evidence that Mr. Whitney, one of the executors appointed under the provisions of the will, was a confidential friend of Mrs. Gibbons, the testatrix, and had acted as her attorney in various transactions, the burden of proof was upon the appellees to show that no undue influence was exercised upon the testatrix to procure the will." This the court declined to charge, saying in substance that it was not a case where Mr. Whitney profited by the will at all; that he was not a legatee, and that as executor and trustee he simply fulfilled the duty which the testatrix imposed and had a right to impose upon him, assuming that she had a right to make a will at all and that the will was valid; and that the rule which, because of the existence of a confidential relation, reverses the ordinary presumption of freedom of action, and substitutes the inference of undue influence, applies only when the person sustaining such confidential relation takes beneficially under the instrument. This we think correct and in accordance with the decisions in this state. St. Leger's Appeal, supra; Dale's Appeal, supra; Richmond's Appeal, 59 Conn., 226.

The remaining reason of appeal is that the court erred in not charging the jury as requested, "that if undue influence. was exerted by W. S. Beebe as to some of the provisions of the will, but as to others no such influence was exerted, they may by their verdict set aside such provisions as they find were made under the domination of such influence." We think the court sufficiently complied with this request, for after reading it, and explaining its meaning and application, it adopted it verbally, adding merely-" if you find there were in the will any such special provisions that were so influenced."

There is no error in the judgment complained of.

In this opinion the other judges concurred.

Ives v. Town of Goshen.

FESSENDEN IVES vs. THE TOWN OF GOSHEN.

Hartford Dist., March T., 1893. ANDREWS, C. J., CARPENTER, TOR-
RANCE, BALDWIN and J. M. HALL, JS.

An appeal was taken from the doings of a board of relief in the assessment of the appellant's real estate for taxation, which it was alleged was assessed above its fair market value. The court found that it was not assessed beyond its market value, but that other real estate in the town had in some instances been assessed below its just and true value, but with no intentional discrimination against the appellant. Held that, if relief against such disproportionate assessment could be granted by the court in a proper case, it could not be considered in the present case where the complaint was wholly of an assessment of the appellant's real estate above its fair market value.

[Argued March 7th-decided April 7th, 1893.]

APPEAL from the doings of the board of relief of the defendant town in the valuation of the plaintiff's property for taxation; taken to the Superior Court in Litchfield County, and heard before Fenn, J. Facts found and judgment rendered for the defendant, and appeal by the plaintiff. The case is fully stated in the opinion.

T. J. Hubbard, for the appellant.

A. D. Warner, with him was W. S. Judd, for the appellee.

TORRANCE, J. Ives took an appeal from the doings of the board of relief of the town of Goshen to the Superior Court, claiming to be aggrieved by the refusal of the board to reduce the assessment upon his real estate.

In his complaint he alleges, in substance, that the assessments were excessive and beyond the fair market value of the property; and this is the only grievance of which he complains. The only relief he asks for is to have his own property assessed at its fair market value as the law prescribes. He does not allege a disproportionate assessment of his property as compared with that of others, but only

[merged small][ocr errors][merged small][merged small][merged small][merged small][merged small]
« ÀÌÀü°è¼Ó »