| Vt. | May 15, 1896
The testatrix left five dollars to the contestant, her sole heir-at-law, and the remainder of her property to the “Old Ladies’ Home” in St. Johnsbury. There was no institution of that name in existence, and the proponent failed to show in his opening what institution was intended. In this situation of the case, it was within the discretion of the court, and a wise exercise of its discretion, to permit the proponent to make good the oversight at the close of his rebuttal.
The contestant excepted to what the court said during the introduction of testimony in regard to the use of the term “hereditary insanitybut the court expressly said that its suggestion was with reference to the exact application of the term, and that no ruling upon the subject was intended. This being the case, it is not important to consider the correctness of the view expressed.
The offer to show that the father of the testatrix was in early life a man of intemperate habits, without any further offer being made in connection with it, was properly excluded. The connection between the intemperance of the parent and the insanity of the child is not so obvious and well recognized as to make evidence of the one admissible in proof of the other without the support of medical testimony upon the subject.
If it was error to restrict the testimony of McKnight as the court attempted to do, the error cannot avail the
The questions asked of the witnesses Dutton and Houston were properly excluded, but the contestant was entitled to show the fact which the examination was apparently designed to elicit. The contestant claimed that the testatrix was subject to insane delusions, and that among the delusions entertained was a belief that certain neighbors had stolen some of her property. To characterize this belief as an insane delusion, it was necessary to show, not only that the facts involved were not as the testatrix believed, but that the situation was such that a sane person would not have entertained the belief. So the contestant could not be confined to proof that the persons accused by the testatrix had not milked her cows in the pasture nor stolen hay from her barn. They might not have done this, and yet their reputation might have been such that it was perfectly reasonable to suspect them of it. The contestant was entitled to show that the neighbors whom the testatrix believed to have stolen her property were reputed to be honest people.
Dr. Darling, a local physician in general practice, who had known the testatrix and attended her in sickness, was called by the proponent in his opening, and gave testimony as to the mental capacity of the testatrix, based upon what he knew of her personally. In rebuttal, the. proponent used this witness as an expert, and in the course of the examination asked him to tell what experience he had had with insane people, whereupon the witness “gave an account of his experience with cases of insanity.” In cross-examination the contestant asked the witness if he had been called to see a certain person, and proposed to inquire whether he examined her with reference to insanity, and whether her case was one of monomania. The manner in which the case was referred to. by the examiner would indicate that it was not a case mentioned by the
In the cross-examination of this witness the contestant asked whether there are certain periods in the life of a woman when she is more subject to derangement of the mind than at others, and claimed the right to ask this and like questions to test the capacity of the witness as an expert. The court refused to allow this, saying that this examination of the witness should have been made when he was upon the stand before. We think this was error. The witness was not used as an expert when first upon the stand. His opinion evidence at that time was only such as might have been given by any one who had had an opportunity of observing the testatrix. When produced as an expert, and inquired of as to his opinion upon the facts testified to by others, he stood in an entirely different relation to the case. The contestant was then entitled to test the witness’s capacity as an expert by a proper cross-examination. He was clearly entitled to do this by any examination which kept within the facts relating to the testatrix as already disclosed by the evidence. The testatrix was a woman of advanced years, and there was evidence tending to show that women are more than ordinarily liable to mental derangement at the change of life, and that a marked alteration was observed in the testatrix’s manner and conduct about that time. The proposed cross-examination did not extend to collateral matters, and its exclusion was the denial of a legal right.
It was not error to exclude the inquiry in regard to the street in which the pipe complained of by the testatrix was located. The fact that she said her neighbor opposite had procured the pipe to be laid on her side of the street instead of his, even if supplemented by evidence that his side of the
The contestant introduced one Crandall, who testified that the testatrix at one time released a part of á debt secured by mortgage and took an unsecured note for the amount released. The proponent then drew from the witness the statement that the note taken was a good note, and in redirect the contestant undertook to show the contrary, and was met by the statement that the maker had property. The contestant then proposed to inquire what the property was, apparently with a view of showing that it was exempt, but he was interrupted by the court in making his statement, and the evidence was excluded. The size of the note may have made this a matter of little weight, but, in strictness, the contestant was entitled to pursue the inquiry.
Considerable discussion was had in regard to the introduction of evidence concerning the disposition of the property left by the testatrix’s father, and a ruling was made limiting the contestant’s offer in that behalf. This' offer was apparently so inconsistent with facts elsewhere presented' in the exceptions that we are in doubt as to just what the contestant expected to show, and so do not deem it advisable to pass upon the exception taken.
Judgment reversed and cause remanded: