| Vt. | Jul 1, 1892
The opinion of the court was delivered by
Concerning her second and third requests and the charge relevant thereto, the defendant claims error, for that the court denied in effect that there is such a thing known to the law as an insane delusion, and left it to the jury to say whether such a thing exists.
It is true that in the commencement of the charge on this subject the court told the jury it was all a question of fact for them to say on the evidence whether there is such a mental disease or derangement as the doctors had described and called an insane delusion, and if yes, whether the testator was afflicted by it when he made his will; but the court straightway by necessary implication assumed the existence of such a disease, and proceeded to charge fully and correctly from that standpoint, telling the jury what, in view of the evidence, would constitute insane delusion in the testator, and what influence such delusion if it existed must have had in the production of the will in order to invalidate it. It is clear from the whole charge on this subject that the jury could not have been misled to the prejudice of
The fourth request is not sound because, if for no other reason, it ignored the contingency that the delusion might be found to have wholly and permanently disappeared before the will was made, in which case the will should not be regarded with distrust by reason of it.
It appeared that about eight months before his death, the testator left the village of Rutland, where he had resided many years, and went a little out to live with Mr. Fisk, the principal beneficiary under the will, with whom he continued to live till his death. It was while living with Fisk that he made the will and the contract therein mentioned. The testimony on the part of the defendant tended to show that the testator was continuously possessed of an insane delusion concerning his wife and his daughter for a number of years next before he went to Fisk’s, and that after he went there comparatively few persons saw him, and the testimony on the part of the plaintiff tended to show that after he went there he was less demonstrative, less" eccentric, and in fact better than when he left the village ; and there was no evidence of false accusations against his wife and daughter after about that time. In this state of the case the defendant requested the court to charge that if the jury found that the testator was possessed of an insane delusion concerning his daughter when he left the village and had been thus possessed continuously for a number of years next before, that that condition of mind would be presumed to continue to the time of the making of the will unless they were satisfied from the evidence that a change in that condition had taken place; which the court refused to do, and this is claimed to be error.
That insanity continues is. not a presumption of law, as is sometimes said, but an inference of fact,varying with the circumstances of the case. 2 Whart. Ev. s. 1,253. In order to warrant the inference, the insanity must be what is some
But the court could not tell the jury that if the testator had been deluded a number of years his delusion must he taken to be permanent in character and be presumed to continue. The fact that it had existed a number of years would undoubtedly have been strong evidence of its permanency, but by no means conclusive. It was for the jury to say upon all the evidence what its character was in this regard. Had there been added to the request the contingency of finding permanency of character in the delusion, the refusal to comply with it would have presented a different question; but as the request was framed, it was not error to refuse to comply with it.
In answer to the sixth request, the court charged fully and correctly as to what constitutes undue influence, and then made a comprehensive statement of the things that the defendant claimed to exist and upon which she relied to show undue influence, and in that connection told the jury that if those things were true they were evidence tending to show such influence. The things thus stated to the jury and relied upon, if found to be true, would not only tend to show undue influence, but they would constitute undue influence, and therefore error is predicated of the expression, “ tending to show.” If the charge stopped here, the claim of error would be well founded. But it does not, for immediately after that expression the court goes on to say, that “ it is for you to say whether you find such a state of facts from the evidence, and whether the will was a product of that undue influence.” Here the court calls “ such a state of facts,” if found, undue influence, which was correct. Then at the close of the charge the court said: “If you find that he had testamentary capacity, you will proceed to consider the question of undue influence. If you find that
It is objected that Fisk was not a competent witness, because he was a party to the contract confirmed by the will, the other party being the testator. But that contract was in no sense in issue and on trial. If the establishment of the will can have any effect on that contract, as to which we express no opinion, it can do so only incidentally and collaterally ; and therefore Fisk was competent.
There are a few other points of exception; but they have not been much urged and are of minor importance. We find no error in respect to any of them.
Judgment affirmed and ordered to be certified to the Jr0-bate court.