94 Vt. 128 | Vt. | 1920
The county court on appeal from the probate court rendered judgment allowing and establishing a certain written instrument as the last will and testament of Kate Healy. The case is here on the contestant’s exceptions. She opposes the allowance of the will on the ground that it was procured through fraud and undue influence.
Bridget McNamara, the mother of the testatrix, on June 24, 1913, executed a will by the terms of which she devised to ■the testatrix the McNamara homestead located in Bennington village. On October 22nd, following, the testatrix executed the instrument in controversy, devising therein the same property to the proponent. The proponent and contestant are children of the testatrix. Mrs. McNamara died April 3, 1915, and her will was duly allowed. The testatrix died February 16, 1918.
The contestant’s evidence tended to show, in substance among other things, that sometime after her mother died the testatrix learned that there was a deed on record in the town clerk’s office from herself to the proponent, conveying to him title to the same property described in the alleged will; that she was much surprised and very angry.at the proponent and often thereafter called him a thief and robber and said that he
Later the same witness was permitted to testify, in substance, subject to the exception of the contestant that he was the attorney of the testatrix in the matter of making her alleged will and a certain deed connected therewith, which will be referred to later, and therefore the evidence was in the nature of a privileged communication, that he went to Mrs. McNamara’s house June 22, 1913, in answer to a call from her; that she then told him that she wanted to give her two houses and what money she had in the bank to her grandson, the proponent; that the proponent came into the room and told her that he did not want it so, that it would make his mother and aunt feel badly; that Mrs. McNamara replied, “I don’t care what yoiir mother or your aunt think about it, I am going to give everything to you, you are my boy, you have done more for me than any of the family”; that proponent further remonstrated; that Mrs. McNamara then wanted he should have the larger of the two houses; that he told her to leave that house to his mother, “and mother can make a will leaving it to me”; that thereafter the witness suggested that Mrs. McNamara could give Mrs. Healy the life use of the house, but the proponent said his mother would feel badly about it and he did not want it that way; that finally Mrs. McNamara instructed the witness to draw a will giving the large house to Mrs. Healy and the small one to the other daughter, and instructed him to tell Mrs. Healy that unless she, Mrs. Healy, made a will leaving that house to the proponent and made a deed conveying the same to him, she, Mrs. McNamara, would tear up her will and make another leaving everything she had to the proponent, and in that connection told the witness that she would tell Mrs. Healy
Unless the witness was incompetent, the evidence was clearly admissible to meet the case made by the contestant.
Some of the same evidence was objected to as immaterial but'this exception is too frivolous to require notice.
Request 5 is, in substance, that if after Mrs. McNamara executed her will and before the testatrix signed the instrument in controversy the proponent told the testatrix that unless she deeded the property to him and made a will giving him the same her mother’s will would be changed, and she believed it and by reason thereof made the alleged will as .she did, and that otherwise she would not so have made jt, the jury might find that the instrument was made through undue influence and was not her will.
Request 6 related to what Mr. Graves told the testatrix, and is in substance the same, in other respects, as request 5.
Decree affirmed, and ordered certified to the probate court