39 Vt. 122 | Vt. | 1866
The opinion of the court was delivered by
I. 1. In the county court, upon appeal from the probate court, on trial of the issue whether the probate should pass, the proponent of the will examined two of the attesting witnesses and produced the third, Dr. Woodward, but declined to examine him. The court ruled that the third must also be examined by the proponent. The third was accordingly under this order of the court examined, but only in respect to the formal execution of the will. Then, on cross-examination, the witness stated in substance, that the decedent was not, in his judgment, of testamentary cajiacity when he executed the will in question. After the usual preliminary inquiries, the proponent was permitted in the progress of the trial, .for the avowed purpose of impeaching the credit of the witness Woodward, to prove, by the deposition of Mr. Parker and by other persons, that the witness had out of court expressed a different opinion, to the effect that the decedent was of sound mind at the time, and that his faculties seemed to have been just spared to make this will. To the admission of this impeaching testimony the contestants excepted, upon the ground that the proponent should not be allowed to attack the credit of his own witness.
The first question for decision is, whether it is necessary for the proponent, in order to establish a will, to produce and examine all the attesting witnesses, when in his power- so to do. If this is not necessary, Dr. Woodward might be treated as not the witness of the proponent. The case would resemble Rex v. Oldroyd, Russ. & Ry. Cr. Cases 88, in which the judge of his own motion called as a witness the prisoner’s mother, whose name was indorsed on the indictment as one of the witnesses for the prosecution, but who had not been called by the prosecuting counsel. Her testimony
Our statute requires wills to be attested by three witnesses, but is silent as to the manner in which they shall be proved when contested. When not contested the statute provides, that they may in the discretion of the judge be admitted to probate upon the testimony of one of the subscribing witnesses : G-. S. p. 379, § 18. This provision would indicate that more were to be required in other cases. In an English common law court, when, as in an action of ejectment, the issue was made upon the validity of a will, the devisee was obliged to call but one of the attesting witnesses, if that one testified to a sufficient execution: 1 Phil. Ev. (Cowen & Hill’s Ed.) 496, 501 ; Anstay v. Dowsing, 2 Str. 1254 ; Jackson ex dem. Le Grange v. Le Grange, 19 Johns. 386. In the Ecclesiastical Courts, it was necessary that all should be produced by the devisee, if in his power; but he was not required to .examine all himself: The Lochlibo, 1 Eng. Law & Eq. 645-7.
It is urged that one or the other of these rules should prevail here. But, it is to be remembered, that at common law a will is proved merely for the purpose of the case on trial, and may be again put in issue ; and in the Ecclesiastical Courts it was proved with reference to the distribution of none but personal estate : 2 Bouvier’s Bac. Ab. 730. The only method by which until recently a will, when it related to real as well as personal estate, could be established in England, was by a bill in chancery; and in such eases, says Lord Camden (Hindson v. Kersey, 4 Burn. Ecc. Law, 91,) it was the “invariable practice ” to require the three witnesses to be examined. It would seem, however, that upon an issue in chancery, other than for the purpose of establishing the will, the examination of the three witnesses was not required. So, in the case Tatham v. Wright, 2 Russ. & Mylne, 1, reported also in 6 Eng. Ch. Rep. 366, where the will was attacked by the heir-at-law, who brought his bill praying that the will be declared void, and the devisee be restrained from setting up
It is held that the production of attesting witnesses is excused by proof of their death (Nickerson v. Buck, 12 Cush. 332,) insanity (Bennett v. Taylor, 9 Ves. Jr. 381,) absence from the country (Lord Carrington v. Payne, 5 Ves. Jr. 404,) or incompetency arising subsequent to their attestation (2 Redf. Wills 34 ; G. S. p. 378-9, §§ 10, 19. See also Wyndham v. Chetwynd, 1 Black. Rep. 95.) The rule
2. This being settled, the next question is, — Was the testimony on behalf of the proponent to impeach one of these witnesses, by his previous declarations, admissible? It is useless to attempt to justify the admission of this testimony under any general rule. The due execution of a will involves the question of sanity as well as of signature, but even if this was not so, and the cross-examination instead of being legitimate had been so much upon a new subject as to deprive the contestant of the right, except by leave of court, to ask leading questions, still, under the general rule, the witness remains the witness of the party who produced him, so far that he may not be impeached by that party : Fenton v. Hughes, 7 Ves. 287 ; Ellicott v. Pearl, 12 Curtis 187-8 (from 10 Pet. 440-1.) Nor can the testimony relating to the previous declarations of the witness be regarded as proof of a substantivé fact (Gould v. Norfolk Lead Co., 9 Cush. 838,) so as to come within the rule which permits a witness to be contradicted, and thus incidentally impeached by proving the facts in issue to be different from his statement of them : Friedlander v. London Insurance Co., 24 E. C. L. 47, 4 B. & Ad. 193 ; Ewer v.
The declarations of Dr. Woodward out of court cannot be shown to prove 'his opinion. Such statements could only have weight in impeaching the credit of Woodward, and not in establishing what his opinion was of how the fact was. That the proponent examined the witness only so far as the law made it his imperative duty to examine him ; that he then sought to impeach him, not by attacking his general reputation, but only in respect to this testimony by his own declarations inconsistent therewith; that these declarations were made after he was selected as an attesting witness by the decedent ; that whatever the usual presumption of law is, his credibility was, in fact, not indorsed by the party who called him under compulsion, are rather reasons to be urged why this testimony should be * received against the general rule, than arguments to prove that such testimony is receivable under it. On the other hand, there is no force in the objection to the admission of this testimony so far as it is put upon the ground, that it is an impeachment of the legal poof, without which the will may not be established ; for the will may, as has already been remarked, be established against it by other proof. The rule which provides that the will shall not be probated without this testimony, does not provide that it shall not be probated without this testimony in its favor. Being participants in the execution, if the will was duly signed, and thus having special opportunity and occasion to observe and know what the trier must ascertain to determine upon the validity of the will,, the law as well as sound policy requires them to be called and heard. It does not require them to be believed. Their claim to belief depends not only upon their opportunities of knowledge upon the subject, but also upon their care, skill,
We are not aware that the rule, that a party is estopped from impeaching the credit of his own witness, has ever been recognised as inflexible. It is not so treated by the text writers. Mr. Phillips says, it will not in general be allowed, but in remarking upon impeachment by previous declarations, refers to the opinion expressed by Lord Mansfield and Lord Ellenbobough in Oldroyd’s case, .before referred to, to the effect that the prosecutor would have had the same right with the court, to impeach the credit of the witness by her former deposition under the circumstances of that case. Mr. Starkie also refers to the question as unsettled, and thinks that upon reason and principle it should, in some cases, be allowed to the extent of proving the representations of the witness upon the subject in relation to which he testified. Mr, G-reenleaf refers to the question as one upon which there is a diversity of opinion, but says that the weight of authority seems to be in favor of allowing witnesses to be impeached by former declarations, in some cases. In the course of his discussion of the subject, he refers particularly to cases in which the witness is one “ whom the law obliges the party to call, such as the subscribing witness, to a deed or will or the like and seems to think their general credit may be impeached by the party calling them: 1 Phil. Ev. (Cowen & Hill’s Ed.) 309-11 ; 1 Starkie’s Ev. 217-20 ; 1 Greenl. Ev., § 443. See also discussion of cases relating to right of party to contradict, and sometimes even to discredit, his witness, in 2 Ph. & Amos Ev. (5th Am. Ed.) 838-43 [*902 et seg.~\
Nor are the books destitute of express judicial decisions to the same effect. The refusal to admit precisely such testimony as this on the part of the proponent, to impeach the subscribing witness of a
In Bootle v. Blundell, 19 Vesey, Jr,, 500, 502-509, all the attesting witnesses gave their depositions in the court of chancery, but upon trial of the issues sent by the court to the jury one only of the subscribing witnesses was examined, the plaintiff declining to examine the other two. The plaintiff introduced other proof, strongly in his favor, and the defendant then gave up the cause. Afterwards the defendant moved for a new trial because all the attesting witnesses were not examined. The Lord Chancellor (Eldon) holding that the heir at law might waive the rule of court for his benefit that all the attesting witnesses must be examined, and from an examination of the whole record, being satisfied that their testimony would not alter the result, and guarding the case as a precedent, denied the motion ; but expressed great dissatisfaction with the irregularity of the trial, and remarked that the subscribing witnesses “ are the witnesses of this court and not of either party, as erroneously considered.” “ If,” he says, “ the object is to establish a will, this court does not give the devisee the opportunity of carrying it before a jury until all the three witnesses have been examined, and will have them all examined, considering them as its witnesses without entering into the dispute frequently occurring in a court of law, whether the person called is the witness of the one party or the other.” “ This court, therefore, before an heir shall be deprived of that opportunity which the law gives him by repeated ejectments to question again and again the validity of the will, until his conduct constitutes a case of that vexatious nature which induces the court to grant an injunction, the court, as it will know the whole truth, expects that all the
In all these cases the witnesses were what may be called instrumental witnesses. Many cases may be cited the other way (as see Brown v. Bellows, 4 Pick. 179 ; Queen v. State, 5 Harr. & John. 232 ; Lawrence v. Barker, 5 Wend. 301 ; Whitaker v. Salisbury, 15 Pick. 534 ;) and in such a conflict of authority, this being the first occasion on which the question has, so far as we are informed, arisen here, we have felt considerable hesitation about admitting an exception to a wholesome general rule. But where the reason of a rule ceases the rule generally should also, unless some special inconvenience or mischief will be likely to arise from the practical application of the exeeption.| The reason of the general rule is that a party should be estopped from impeaching the credit of the witness whose credibility he indorses by calling him. The reason fails when in fact the party is, as in this case, compelled by law to call him, no matter how much he doubts the credibility of the witness, before he can be allowed to prove his case by others on whom he relies, t There certainly would seem to be no ground in reason or convenience in holding the párty estopped from impeaching such a witness to the extent of proving his former declarations on the same subject. / The fairness of holding a party estopped by reason of an act with relation to which he has no choice or by an indorsement which he does not make of a witness whom the law calls and makes current whether the party indorses him or not, may well be questioned. It would seem enough that the party is obliged to examine him and make his way through him by such an impeachment and to prove the facts by others — that he is required to furnish the court with the testimony
3. Another question grows out of the testimony of this attesting witness, Dr. Woodward. The contestants excepted to the refusal of the court to instruct the jury in accordance with their sixth request “ that the testimony of Dr. Jonathan D. Woodward, as being one of the subscribing witnesses to the instrument in question and the attending physician of the alleged testator, was entitled to much consideration on the question of capacity, and raised a strong presumption against the validity of the will.” The weight of his testimony, so far as it depended on his being a medical attendant of the decedent, must be conceded to have been a matter of fact with relation to which the comments of the court are not a subject of exception. But it is claimed that the weight of his testimony, so far as it depended on his being a subscribing witness, was a matter of law and that the court was bound to rule as requested, even though the witness was contradicted by both the other subscribing witnesses and by his own previous declarations, and even though by his own statement he made no suggestion to any one, at the time of the execution of the will, that he doubted the testator’s capacity, and was not sure that he had any conversation with the testator on the day in question. The court in response to this request told the jury that they should consider his professional skill and experience, but that the weight and value of his testimony must also be determined, like that of the other witnesses on this subject, “ with reference to his opportunity for observation, his skill and care in observing, his intelligence and powers of discernment and memory,” which doubtless would ordinarily be a correct rule for measuring the value of the testimony of a truthful witness. Is there a weight given by law to the testimony of a subscribing witness apart from or beyond what it would be entitled
II. The contestants in their eleventh request asked the court to rule that for the reasons named in their request, “ the evidence in regard to the two previous wills drawn up but not executed ■ by the alleged testator, afforded no proof of any intention on his part that could be taken into consideration on the question of capacity or influence.” It is well settled that evidence of previous wills, executed or unexecuted, drawn under the instructions of the .testator, is admissible. So, too, evidence is received, as was done here, to prove the condition of the testator’s estate, his family relations, affections, and
III. 1. The court refused to permit the party to be inquired of whether it was not Ms apprehension that Wood would testify in a particular manner which induced him to discharge Wood from further attendance, on his behalf, as a witness. It is not claimed that the witness was concealed. He was merely discharged, and after-wards summoned and examined by the other party. We think no error can be based upon this ruling.
2. Nor do we think that the refusal of the court to permit Willard, after he returned and corrected a point in his testimony, to be re-cross-examined except strictly upon the point corrected, can be treated as a ruling upon a question of law. In the opinion of the majority of the court, it was entirely in the discretion of the judge
3. The question allowed to be put on cross-examination to Dr. Allen is objectionable, because it assumes a state of facts upon which no medical or expert opinion could be based. Dr. Allen seems to have so understood it, and declined to give any such professional opinion, but replied in substance : “ I must understand from your question that the man was able to make a will.” The whole matter stands as if the question was unanswered, and the propriety of the question, as the correlative of the one asked on the examination in chief, need not be considered.
IV. 1. The contestants except to the refusal of the court to tell the jury, in accordance with the third and fourth requests, that if his wife and the great-grandchildren, Stukely, Maynard, and Flora J. and Mary E. Maranville, who are all legatees, would have been omitted in the will by the testator, without motive, but for the promptings and suggestions of others, they would be authorized to infer testamentary incapacity. The main evidence upon which this request is founded is the testimony to the effect that some one said to the testator, when he was giving his instructions for the drawing of his will, “ you must not forget Stukely and the little ones,” and he said he had not, and remembered them with the same amount of property he had set apart for them in the unexecuted draft; and the testimony of another witness that his wife who was present said to him that he must not forget Stukely, and he . replied, “ I must not forget my wife.” It is not clear that any one used this language with reference to any supposed lack of memory. It seems rather to have been used as an-expression, on the part of the heirs who were present, of their desire that these little ones should be remembered with a bequest. We think the evidence that they would have been forgotten is exceedingly slight and inferential. There is other evidence of conversation between the testator and the scrivener, and
2. For somewhat similar reasons, we think the court was right in refusing the ninth request, in which the contestants had collated certain conceded and certain disputed facts, and, isolating them from others which would affect their force, asked the court to say to the jury, that they might infer undue influence from them if found. The court properly explained to the jury what would amount to undue
The result is, the judgment' of the county court is affirmed, and ordered to be certified to the probate court.
As to value of testimony of attesting witnesses, see note (1,) Burrows v. Lock, 10 Vesey, (Sumner’s Edition,) p. 476.