| Vt. | Feb 15, 1890
The opinion of the court was delivered by
The three full questions and answers in the depositions excluded by the County Court have the common defect of calling upon the witness to pass upon the precise question on trial before the jury. This is never allowable. A non-expert witness must be confined to a statement of facts, or his opinion-formed from facts known by the witness and disclosed to the jury. It is the province of the jury, under proper instructions-from the court, to determine the issue upon which such facts and opinion are to be considered. This is too well established to require the citation of authorities. We find no error in the exclusion of other portions of answers in the deposition of' Mrs. Lee. What her grocer told her was hearsay, and inadmissible for that reason. When she said, not in answer to the interrogatory, that the testator was “ so irritable and abusive to • his father that the doctors forbid him coming into the room,” she does not state facts bearing upon the mental condition of: the testate, which could aid the jury in determining whether three years later the testator had mental capacity to make a~ will, the only issue on trial. While his mental condition and capacity at that time might bear remotely upon his capacity to-make the will three years later, she, without stating the occasion or extent of his inability, makes the statement so indefinitely and so related to the condition of his father and the opinion of
II. The request of the contestants, so far as it called upon the court to construe the will to enable the jury to judge whether it was probably the product of a sound, disposing mind, or otherwise, was a suitable request. So far as it called upon the court to explain to the jury the weight they should give to the will as construed, in determining the mental capacity of the testator, was improper. No exception was taken to the failure of the court to comply with the request, but to a portion of the charge construing the will. We do not think that this exception is well taken. That portion of the charge particularly excepted to, in which the court say, “ you might perhaps take into consideration that in making it in this respect he may not have clearly understood what the result would be in case she did not comply with the condition, or in case she attempted to give it away in violation of his bequest in the will,” was unfavorable to the proponent rather than the contestants, as it intimated that from the provision of the will the jury might find that the testator did not understand nor comprehend what he did, and, impliedly, that he did not know what he desired to do. The contestants have no ground to complain of this portion of the charge. The construction given to the condition that the legatee should not give nor bequeath one cent of the estate to any member of the testator’s family or to any of her relatives, that its violation would work a reversion of the estate, was as favorable to the contestants as they were entitled. It might
It is contended that the court should have instructed the jury that the wife took under the will only in her representative capacity, as executrix. The clear intention of the testator was to devise the property to her as an individual designated by the title, executrix, which he had just conferred upon her.
Judgment affirmed and certificate ordered.