Denny v. Heirs of Pinney

60 Vt. 524 | Vt. | 1888

The opinion of the court was delivered by

Ross, J.

I. The testatrix and the attesting witnesses severally signed the will in the presence of each other. The testatrix did not personally say it was her will. Mr. Baker, who drew the will for her, in her presence announced to the witnesses that it was her will and requested them to sign it as witnesses. This was a sufficient publication of the will, and gave the witnesses full knowledge of the act they were performing. The act of the testatrix, in signing the alleged will, in the presence of the witnesses after they had been informed by Mr. Baker that it was her will, and requested to sign it as such, as well as her silence, after the proclamation by Mr. Baker, was an affirmance, by the testatrix, and an acquiesence in the announcement by Mr. Baker. It was all the publication required, as it fully informed the witnesses, with the testatrix’s implied assent and approval, of the nature of the act they were asked to perform. Roberts v. Welsh, 46 Vt. 164; Dean v. Dean, 27 Vt. 746.

II. It was not incumbent upon the proponent to produce the attesting witness Bartlett in court. He was beyond reach of process. The English practice adopted by this court requires the proponent only to proceed and examine such of the attesting witnesses as are within reach of process. Thornton v. Thornton, 39 Vt. 122. He must be within reach of process, and legally obtainable at the trial. It was no more the legal duty of the proponent to procure the deposition of such a witness, who resided beyond the reach of process, than it was the duty of the contestants ; nor was it any more his duty to produce the deposition of such a witness, because he had an opportunity to take bis deposition when the witness happened to be in the State, than if the witness remained all the time without the State, provided the proponent knew his residence. In neither case could he produce the witness upon the trial, and examine him. The practice here and in England, has never required the production of the deposition of such a witness. To make such a deposition of value the instrument proposed must be produced to the witness identified. It would be difficult and objectionable to do this. The proposed instrument is required to be deposited with the Probate Court, and,, for proof before that court, is no.t within the control of the proponent without an order of the court, even if it is after the allowance of an appeal to the County Court. Besides, more or less danger attends the removal of a proposed will from the State for such a purpose. There was no error in the action of the County Court in regard to the production of the deposition of this witness.

III. Was the testimony of Mrs. Ellen Alvord rebutting, when recalled after the contestants had closed their testimony? The contestants by their pleas raised two issues, — incapacity and undue influence. As to the first, the burden of proof was on the proponent. Williams, ex’r, v. Robinson, 42 Vt. 658. When the due execution of the will, and testamentary capacity of the testatrix, were proved, the law presumed, she intended that the legal results of her act should follow. Hence on the issue in regard to undue influence the contestants went forward. On the issue in regard to the mental capacity of the testatrix, the state of the health of the testatrix, her activity and ability to labor, bear indirectly. Hence the proponent introduced evidence bearing upon these points in his opening. Just what he showed the exceptions do not state. But this class of testimony bore also quite as directly upon the issue as to undue influence, in regard to which the contestants took the laboring oar. From the question excepted to, put to Mrs. Alvord, it is apparent that the contestants had gone into this class of testimony on the issue in regard to undue influence; for, the question only called the witness’ attention to the testimony on these points introduced .by the contestants. The testimony called for by the question would be in rebuttal to the contestant’s evidence on the issue in regard to undue influence. It would also bear cumulatively upon the issue made in the opening by the proponent in regard to the capacity of the testatrix. Hence, in one view it was strictly in rebuttal, and in another cumulative, dependent upon the issue to which it applied. It was therefore legally admissible in rebuttal on the issue in regard to undue influence. It could not be made inadmissible because from the nature "of the issues it bore indirectly, and was cumulative upon the issue as to the capacity of testatrix. To hold otherwise would be a too strict and narrow construction of this rule requiring each party to put in his full case on the issues resting upon him, and would often make the rule intended for the furtherance of justice, work surprise and injustice. The admission of such testimony, in a case where the issues are thus made, cannot be said to be an infraction of the rule, in letter, or in spirit.

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