John H. Robinson, Exr. v. Oramel Hutchinson and Wife, 26 Vt. 38

The opinion of the court was delivered by Isham:, J. The probate of this will is resisted on the ground, that it was obtained from the testatrix, by the influence and undue importunity of her sons, John H. and Franklin Robinson. The will was drawn by Franklin Robinson, who was largely benefitted by its provisions, to the exclusion in a great degree of his sister, Mrs. Hutchinson.

It is insisted, that the testatrix was imposed upon by him, at the time of its execution, as to the character and effect of its provisions; and that the will was obtained, when the testatrix was greatly enfeebled in mind, not only by infirmities usually attendant upon persons of her advanced age, but by various bodily diseases, and a domestic affliction in the death of her daughter.

It is also insisted, that she was unable to overcome those influences then exerted upon her mind; and that her will was obtained, thereby making a disposition of her property different from what she then desired, and contrary to her former expressed determination. In other words, it is said, that the instrument expresses the will and desire of Franklin Robinson, rather than that of the testatrix. In cases of this character, the presumption is in favor of the will, and of the capacity of the person making it.

It is therefore incumbent on the party attempting to defeat the will, to show affirmatively, the existence of any disability. 1 Swinb. on Wills, 119. Shelford on Lunacy and Persons of Unsound Mind, 274. For that purpose, and in proof of the issue in the case, the declarations of the testatrix made shortly previous, and subsequent to the time of the execution of the will, were offered in evidence by the appellants, and were rejected by the court.

It is insisted that her declarations were admissible for the purpose of proving the fact stated, that such undue influence and importunity was exercised ; and also to prove the weak and enfeebled state of her mind, at the time of the execution of the will. In relation to the admissibility of her declarations to prove the fact that such importunity and influence were exerted, we must consider that matter as settled by a former decision of this court, in this case, in which her declarations were held inadmissible for that purpose. That decision is evidently sustained by the authorities. Provis v. Reed, 5 Bing. 435.

Smith v. Fenner, 1 Gall. R. 170. Jackson v. Khiffen, 2 Johns. 31. Comstock v. Hadlyme, 8 Con. 263. The authorities, however, fully sustain the position, that those declarations are admissible in evidence, for the purpose of showing the state and condition of her mind at the time of the execution of the will; that it was in that weak and enfeebled state, in which she was incapable of resisting the importunity and influence, which it is claimed, was exerted upon her. That evidence should not have been entirely rejected from the consideration of the jury.

On this subject, it is proper to observe, that the object of the testimony was not to show imbecility, or the want of a disposing mind; but to show a weakness of mind, which rendered its free ■agency easily overcome by influences from that source; and to lay the foundation for the introduction of other and more direct testimony, showing that such importunity and influence was in fact exerted on that occasion, which may be sufficient to avoid it.

In the case of Nelson v Oldfield, 2 Vt. 76, the declarations of the testatrix were admitted in evidence, when made after the will was executed, in which she complained of having been circumvented in making the will, and of the injury she had done her mother and sisters. On that testimony, the court of chancery refused its aid relative to a trust estate, though she had expressly refused to revoke the will. The court in that case gave effect to the testimony, and thereby defeated the operation of the will itself. It is a much stronger case than this. In Comstock v.

Hadlyme, 8 Con. 263, declarations of the testatrix, made about the time of executing the will, tending to show importunity and undue influence, were admitted to show her state of mind, though not to prove the fact stated. That testimony was received at the circuit, and a new trial was refused. The same doctrine was afterwards sustained in the case of Kinne v. Kinne, 9 Con. 105. This doctrine is sustained in Pennsylvania. In McTaggart v.

Thompson, 14 Penn. 159, the declarations of the testator, “that he had ruined his family, had been deceived and imposed upon by persons who had procured him to have his will made,” were admitted in evidence to show his weakness of mind at the time of making his will. The same rule was adopted in the cases of Rambler v. Tryon, 7 S. & Rawle 94. Chess v. Chess, 1 Penn. 32, in which the court observed, “ that the declarations of a testator although after the execution of the will, are evidence of weakness of mind.” Irish v. Irish, 8 S. & R. 373. In the case of Reed Exr. v. Reed, 1 Hawks. (N. Car.

R.) 247, 268-9, this subject was examined with great research, and such declarations were held admissible to defeat the will itself. Without adopting the doctrine of the case to that extent, it is a strong case, sustaining the admissibility of the testimony, for the purpose for which it was offered in this case. In that case the court observed, “ that to reject the declarations of the only person having a vested interest, and who was interested, to declare the truth, involves almost an absurdity. It was not necessary that the declarations be a part of the res gestae, for whether they accompany

an act or not, whether made long before, or long after making the will, is entirely immaterial, as to their competency. Those circumstances only go to their weight, or credit with the tribunal, which is to try the fact.” The same doctrine was afterwards sustained in the case of Howell v. Barden, 3 Dev. 442, 444 to 451. The true rule and distinction on this subject, we apprehend, is given in 2 Phil.

Evid. in Notes by Cowen & Hill, 648, in which the editor remarks, “ that the difficulty seems to lie in acting upon the distinction between declarations going to develop the operations of the mind, and those containing the assertion merely of a distinct fact. The former are' admissible, the latter not.” We do not perceive any serious objection to the admission of this testimony in this case, under that limitation, when the declarations were made so near the time of the execution of the will, that a reasonable conclusion, may be drawn as to the state of mind of the testatrix at the time the will was executed.

Weakness of mind, arising from advanced age, in connection with causes suggested in this case, is progressive and permanent in its character. It exists in the mind itself, and therefore it is, that weakness of mind, at the time of making the will, may be inferred from weakness subsequent, as much so, as imbecility of mind under similar circumstances; and particularly is the testimony important, in showing the extent and character of the influence, which the person drawing the will, had over the mind of the testatrix.

Upon these principles, and under that limitation, a portion of the testimony of Thomas Robinson, Lucy French, Mrs. Prentiss and Attee Walker, stating the declarations of the testatrix, soon after making the will, and having reference to it and the disposition of her property, should have been received. It is for the jury to say, what weight is to be given them, and how far they tend to show the condition and state of mind of the testatrix, when she executed the will. It has been properly observed, that the evidence is dangerous in its character, and is to be received with great caution.

It must be strictly confined to proof of weakness of mind, at the time of making the will, and not to proof of the fact stated, that such influence and importunity was exercised on that occasion. The judgment of the County Court is reversed, and the case remanded.