This was an appeal from a decree of the probate court establishing a certain written instrument as the last will and testament of Orzella C. Bean. In county court trial by jury was had, and the verdict and jugdment allowed and established the will. The contestants excepted.
The will was executed August 26, 1909. The testatrix was then past seventy years of age and was a widow, her husband having been dead about a year. By her will she gave five dollars to each of her five children, namely, her four sons Hiram, Charles, Everett, Herbert, and her daughter Kate, the wife of Lee Lane. The residue of her estate she gave to her son Charles, the proponent of the will, which names him as executor. The sons Everett and Herbert and the daughter, Mrs. Lane, are the contestants. In county court the will was contested on the grounds of lack of mental capacity on the part of the testatrix and of undue influence exerted upon her by the proponent, Charles Bean. It appeared that the estate was worth about two thousand nine hundred dollars.
The proponent, Charles, was a witness, and in direct examination testified to the effect that he never influenced his mother to make "the will in question. In cross-examination he was asked various questions about his talks with his mother. Some of them he answered by saying “No” or “No Sir,” and some of them by saying “Not to my knowledge.” He was asked if he ever told his mother that she could give the other children one dollar each and that then the will could not be broken. He replied “Not to my knowledge.” Examining counsel then said: “That wasn’t a great while ago. You know whether you did or didn’t?” The witness replied: “I say not to my knowledge, sir.” Counsel then said: “You mean to say that you didn’t say that to your mother when you say 'not to my knowledge ”? This question was objected to and was excluded. The meaning of what he had said was clear enough, and required no explanation. Counsel for the contestants say that the answer was evasive, since he could not have told his mother what was-implied in the question without his knowledge. But the witness was referring to the knowledge or recollection which he had!
The proponent testified 'that he had corresponded with his parents for the “last” ten years. In cross-examination he was asked “Did you write this, T want you to have these things fixed up as soon as you can so there will be no fighting. All you will have to do is to will them all one dollar and they can’t break the will.’ Did you write that? ” There was nothing in the question to indicate whether the inquiry related to a letter written to the testatrix or to her husband. Presumably, however, the question related to a letter written to the one or the other of his parents. The question was excluded and an exception was taken. The contestants claim that the question was admissible on the ground that, if the proponent had written the passage asked about, that fact tended to contradict the direct testimony of the witness. But it would not so tend unless the words were written to his mother. Error does not affirmatively appear.
At a later stage of the trial the contestants intgpduced in evidence certain letters written by the proponent. Two of them were written to the testatrix, and one of them was written to her husband, the father of the proponent. In one of the letters, dated about four years before the death of the husband of the testatrix, but addressed to her, the proponent said: “There is one thing I want you to do, that is to have things fixed as soon as you can so there will be no fighting. All you will have to do is to will them all one dollar and they cannot break the will. ” Doubtless this is the letter about which the contestants had inquired as above stated. It was received in evidence, and so although the inquiry was not so framed as to entitle the contestants to an answer, they got the benefit of the matter they were trying to bring out.
The proponent called one Fiske, a clergyman, who, after testifying to seeing and observing the testatrix, testified as to her without objection thus: “Why I never saw anything that led me to feel that she did not understand what was going on. ” In cross-examination Mr. Fiske testified that Mrs. Bean’s hus
Various witnesses had testified and properly, about the mental condition of the testatrix; and two of the attesting witnesses to the will, R. M. Harvey and E. M. Harvey, Esquires, had given their opinion that at the time of the execution of the will the testatrix was of a sound and disposing memory. This testimony was not objected to and did not, as the contestants seem, to suggest, entitle them, on the cross-examination of Mr.
The proponent’s testimony tended to show that his father and mother had been opposed to the marriage of his sister, Nate, to Lee Lane, and that the parents ever after the marriage had hard feelings toward both her and her husband.
The proponent’s evidence tended to show that Lee Lane had abused his wife and that she had left him twice.
Mrs. Lane, who is one of the contestants, took the witness ■stand and in cross-examination by the proponent’s counsel, was examined as to whether she complained to her father and mother about her husband. She said that she hardly thought ishe said much about him, that the separation was the result of ¿a misunderstanding, that she, perhaps, complained somewhat to her father and mother about her husband because he thought as he did. In redirect examination she was asked by her counsel if the separation was by reason of anything Mr. Lane did, and if the cause of the separation was anything that some third party outside the family did. The offers in connection with "these questions'were to show that the separation was not by ■reason of anything that Mr. Lane did and that the separation was “because of something that some third party outside the ■family did.” The questions were excluded under the offer and the contestants excepted. There was, however, no error in excluding the testimony. The cross-examination as to the abuse of Kate by her husband was relevant only as it was connected with testimony tending to show knowledge of the situation ’brought home to the testatrix; and the offers accompanying the questions in redirect examination did not tend to show that, if the cause of separation was the conduct of a third party, that fact was brought home to the knowledge of the testatrix; •or that any statement that such was the fact was ever made to •the testatrix. The offers lacked a very essential element. In re Estabrook’s Will,
In direct examination Mrs. Lane was asked: “What ’have you ever noticed your brother Charles do in respect to your mother?” The witness answered: “Well, he wanted ;she should do as he said, and had a great influence over her.”
One Badger was a witness in behalf of the contestants. In rebuttal the proponent contradicted Badger and was asked, if the latter was any relative of the wife of the contestant, Herbert Bean. He said: “They tell me he is.” Neither the question nor the answer was objected to. Subject to objection and exception he was then asked: “From whom did you get the information? ” He said: “Herbert Bean’s wife. ” Hearsay evidence of relationship between Badger and the wife of one of the contestants having got into the case without objection, and no request being made that it be struck out, the contestants were not harmed by having the witness who had given the testimony give the source of his information, for they were thereby given opportunity to refute it. Ware v. Childs,
The exceptions state that proponent’s evidence tended to show that after the funeral of Mrs. Bean’s husband, the daughter, Mrs. Lane, did not visit her mother, the testatrix, until the latter, at the time of her death, became unconscious, although much of the time the testatrix lived alone and within a few miles of the home of her daughter. The exceptions also state that, with reference to Mrs. Lane’s estimonial reasons for not visiting her mother, certain diaries were used as having a tendency to show that, although the daughter did not visit her mother, the former was in good health and was many times away from her own home. It appears from the exceptions that these diaries, belonged to Mr. Lane, and that on one day of trial, in testifying in behalf of the contestants, he used one of the diaries; that the-proponent’s counsel then asked him to produce his diaries for 1909 and 1910; that the witness replied that he couldn’t say whether or not he kept one for 1909, that there was one year— one or two years — that he didn’t keep a diary; that if he was
The appearance of a witness on the stand may often be proper matter of comment. State v. Rivers,
But it appears from what is stated in the bill of exceptions that the testimony tended to show the keeping by Lane of diaries for a series of years, and that when he first testified about the diaries he wouldn’t undertake to say that he didn’t keep a diary for 1909. This testimony was given at the Spring Term of 1911, not more than a year and half after the close of 1909. As the exceptions read, his testimony about this matter, on the second day above referred to, was not that he didn’t “keep” a diary in 1909, but that he “had” none for that year,, which would be true if he had kept one and had destroyed it. This may be a merely verbal criticism. But the whole situation was before the county court. Whether or not the court said or did anything except to allow the exception does not appear. No error can be predicated upon this incident.
The contestants presented sixteen requests to charge..
In consequence of a holding in another case, disposed of just as this case was to be argued, counsel for the contestants 'herein asked for, and was given, permission to prepare and file a supplemental brief upon the subject just above discussed. 'Such a brief was filed and we have given careful consideration to it and to all the cases therein cited, and have made reference to the exceptions and briefs on file in some of the cases, since the •contestant’s brief invites such reference.
In Emack v. Hughes,
In Kilpatrick v. Grand Trunk Ry. Co.,
In Terrill v. Tillitson,
In Morrisette v. Canadian Pacific Ry. Co.,
In McKinstry v. Collins,
In Luce v. Hassam,
By this time it had become apparent that a practice Avas; growing up utterly at variance Avith the long established rule-that the trial court is entitled to know, before the jury retires, the precise claims which an exceptor makes with respect to» claimed faults in the charge in consequence either of what has been said or of what has been left unsaid. The exception to> the charge as given was briefly disposed of. The exceptions
In White v. Lumiere etc. Co.,
The two cases last referred to were followed in Drouin v. Wilson,
In the meantime, a new formula for a general exception had been presented. As a description of attached real estate as all the real estate which a defendant owns in a given town has ■been held to be too uncertain, while a description of attached real estate as all the real estate in a given town has been held to be certain enough to hold the real estate of the defendant within the town, so, it appears to have been reasoned, if a list
Such an exception was taken in Mahoney’s Admr. v. Rutland R. Co.,
In Duggan v. Heaphy,
The formula of the general exceptions taken in the case ■at bar is the same, except for a slight and immaterial change of phraseology, as that used in the Duggan case.
As it is not fair treatment of a witness to assume that he has said something which he has not, so it is not fair to the trial court to assume that it has refused to comply with each and every one of a long list of requests when there is, in fact, no claim that it has so refused or that it ought to have complied with each and every request. Exceptions are not like pleadings, in which, often, certainty is more important than truth.
After the close of a charge the conference between the lawyer at the bar and the lawyer on the bench, as to claimed errors in the charge, ought to be frank and unreserved to the end that the presiding judge may correct or amplify the charge as upon reflection he may desire to, and that no questions may be brought to this Court except those upon rvhich the county court has had a fair opportunity to pass judgment. The exceptions which we have referred to might well be denominated exceptions in the ‘‘common counts.” They say to the court “you have erred,” and say no more.
In most of the cases already referred to there were particular requests so brought to the attention of the court that exceptions to non-compliance with them were held to be available. The practice of the Court since Luce v. Hassam,
In Kiley v. Rutland R. Co.,
In Williams v. Norton Bros.,
In Coolidge v. Taylor,
In Lang v. Clark,
The defendant in his supplemental brief makes special mention of the case of Jenness v. Simpson,
There the defendant presented sixteen requests and excepted to the neglect and refusal of the court to charge, “as requested in each request severally as to each request.” The peculiar formula used in the exception is of no consequence, as we have seen. In his brief, the defendant discussed only seven of these requests, and claimed nothing as to the rest and so waived his exception as to each of them. Nevertheless this
The contestants call attention to the opinion in the case of Fife & Child v. Cate,
We have referred to all, and more than all, of the cases cited by the defendant upon the point of practice raised. In general, where the Court has declined to consider exceptions to a charge or to a failure to charge or to comply with requests it has done so of its own motion; but here the plaintiff in his brief challenges the availability of the exception to the refusal to comply with the requests, and the defendant has prepared a special brief in in support of the exception; and the time has seemed opportune for the discussion which has been had. In this State the trial •court, whether requested or not, is bound to instruct the jury as to the law which governs a case, and an exception lies as
The contestants took two specific exceptions to the charge, but neither of these is relied on or mentioned in their brief, therefore, they are not here considered.
Judgment affirmed and ordered to be certified to the probate court.