95 Vt. 304 | Vt. | 1921
When this ease was here before -the bill, challenged by demurrer, was held insufficient and the cause remanded, as reported in 91 Vt. 266, 99 Atl. 1014. An amended bill was then filed, answer made, issue joined, the cause heard and facts found by the chancellor. Thereon a decree was rendered dismissing the bill with costs to the defendant, and on appeal the case is here for review.
It was essential to the plaintiff’s case, as made by his bill, to show that some years ago (alleged as in 1886) defendant left, deserted, and abandoned his wife, the testatrix, and that about the same time he promised her that he would thereafter make no claim to her earnings or to any property which she might thereafter accumulate, and that she might use and dispose of the same as she wished without hindrance or interference from him, if they were not divorced; and that at the same time and in consideration thereof the testatrix promised and agreed with the defendant that she would thereafter make no claim upon him for her support, and would make no claim of any kind upon him, his earnings, or any property which he might thereafter acquire.
Later, March 14, 1903, the testatrix purchased a house and lot situate in Montpelier, paying therefor $4,000 and receiving a
On April 19, 1913, the testatrix made her last will and testament, and the same was duly probated November 16, 1914, soon after her decease. The same day of the probate, the defendant, as surviving husband, filed a waiver of the provision made for him in the will, and claimed the right to take estate as is provided in like cases of intestate estates. Lewis D. Bancroft, the plaintiff, is the executor named in the will, also the residuary beneficiary under its provisions.
The conduct of the testatrix in making the purchase and giving the mortgage, was not independently material and provable under the issues involved, either directly or incidentally, in the case. Neither was the declaration, standing alone, made by her in connection therewith, in the absence of the husband, competent evidence in the plaintiff’s favor. It follows that the declaration was but a hearsay assertion and properly excluded. 3 Wig. Ev. §1773; State v. Ryder, 80 Vt. 422, 68 Atl. 652; Comstock’s Admr, v. Jacobs, 89 Vt. 133, 94 Atl. 497, Ann. Cas. 1918A, 465.
The plaintiff called the defendant to testify as a witness in his behalf, and examined him at great length on all matters pertaining to, or having any bearing on, the relations between him and the testatrix during their married life, including their beeping house in the early part of that period; their engaging in business, resulting in his going through insolvency; their worbing thereafter or engaging in business separately at different places and in different towns and, during a part of the time, in different states; the extent of their being together and cohabiting as husband and wife; the financial contributions, if any, by each or either to the comforts, wants, or use of the other; the failure of each to visit or have any communication with the other
This being decisive of the case, we need not consider the other questions presented.
Decree affirmed and cause remanded.