Opinion
The charge that the burden of proving compliance with the formal requirements of execution was upon the proponents of the will, with the subsequent recital of the formalities which the statute requires, afforded ample instruction upon this point under the circumstances of the present case. Requests to charge should state, separately, single propositions of law claimed to be applicable to the issues and facts of the case. It is for the trial court to give such further instructions as to the application of these principles of law to the facts as the circumstances reasonably require. The application of the principles of law concerning testamentary capacity and undue influence to the facts of the case in the charge considered and held to have been sufficient for the guidance of the jury.
Argued January 28th, 1930
Decided March 31st, 1930.
APPEAL by the plaintiff from a decree of the Court of Probate for the district of Waterbury approving and admitting to probate a certain instrument as the last will and testament of Mary E. Turley, late of Waterbury, deceased, taken to the Superior Court in New Haven County and tried to the jury before Simpson, J.; verdict and judgment for the defendant and appeal by the plaintiff. No error.
The appellant, Mary A. Kast, is the daughter of Mary E. Turley, who died in Waterbury November 3d 1928. The appellee, James A. Turley, is a son of the decedent, who also left another son George A. Turley. Her husband, James W. Turley, died in 1918. On May 13th, 1914, Mrs. Turley executed the instrument in question, devising and bequeathing all her property to James A. Turley, and appointing him executor. The appellant contests on the grounds that the testatrix did not possess testamentary capacity and that the will was obtained by undue influence exercised by James A. Turley.
Upon the trial the appellant offered evidence to prove that following the death of an infant daughter in 1896 Mrs. Turley was ill for several weeks and thereafter was nervous, critical and difficult to satisfy; that in 1912 she had a serious illness and from then until 1924 or 1925 was irritable and worried and at times her state of mind was unnatural; that in 1920 or 1921 she was again ill, from cerebral hemorrhages and shock, and from October 5th, 1927, until February 11th, 1928, was in the Hartford Retreat, during which time she was insane. Evidence was also offered that on the same date the will was signed Mrs. Turley executed deeds, conveying her dwelling-house to James A. Turley, which were delivered to him within a few days but not recorded until February 3d 1928, nor was their existence known to the appellant; that upon the death of her husband Mrs. Turley received about $9000 insurance upon his life, which she deposited in banks in Waterbury and retained in her own name until 1927, when she placed these deposits in joint accounts payable to her and to James A. Turley; that in March, 1928, the appellee withdrew the money from these accounts and deposited it in his own name in New York; that Mrs. Turley regarded highly James' ability as a lawyer; that she was more easily managed when he was present; that the decedent was opposed to the marriage of the appellant, which occurred in 1912, but appellant continued to visit her mother, and after appellant's son was born, in 1916, Mrs. Turley came to see her on several occasions, and she and her husband frequently visited the decedent.
The appellee offered evidence that the decedent was of sound mind, and a person of intelligence, strong will and positive ideas, and transacted for herself all business concerning her property; that the appellee, after entering the practice of law in New York, repaid to the decedent all money advanced for his education, paid the expenses of the legal education of his brother George, and contributed toward the maintenance of the appellant during three years' training, in New York, to become a nurse; that when the decedent bought her house in 1902 he contributed part of the cash payment, subsequently reduced the mortgage ($2000) by $300, and later paid and took an assignment of the mortgage; that between 1902 and decedent's death he paid all taxes on the property and expended between $1500 and $2000 in improving it, contributed to the support of decedent and her husband, and after the death of the latter continued to support his mother until her death, including large expenses of her illness in 1927 and 1928; that he paid premiums and assessments on insurance on the life of her husband, which insurance was paid to the decedent; that the transfer of the bank deposits to joint accounts was done by the decedent without any request or suggestion by him, and the withdrawal of the deposits, later, was at her suggestion; that decedent changed another account to the names of herself and her other son, George, which was later withdrawn by George and deposited in his name in New York; that throughout her life decedent retained and exercised sole charge and control of her property free from any interference on the part of the appellee; that the appellant married, in 1912, against the wishes of decedent and remained away from decedent's house until about 1918, when for a short period she visited there with some regularity.
Further facts in evidence are mentioned in the course of the opinion.
Frank P. McEvoy, with whom was A. Henry Weisman, for the appellant (plaintiff).
William B. Fitzgerald, with whom, on the brief, was Ulysses G. Church, for the appellee (defendant).
The assignments of error pertaining to the charge as given relate, with one exception, to the subject of the execution of the will in compliance with the formalities prescribed by statute. The court was correct in stating that the first two reasons of appeal from probate raise the issue of testamentary capacity of the testatrix, and the remaining three present the question of undue influence. No issue of the execution of the will with the requisite legal formalities was expressly raised. It appears from the finding that evidence as to the formal execution was given by one of the witnesses to the will and by the attorney who drafted it and was present at its execution, and that no evidence to the contrary was introduced. The trial court was warranted in regarding the controverted issues as confined to questions of testamentary capacity and undue influence. The charge that the burden of proof of compliance with the formal requirements was upon the proponents of the will, with the subsequent recital of the formalities which the statute requires, afforded ample instruction upon this point, under the circumstances. The court's expression of opinion that, upon the testimony, the question of execution presented little difficulty, the determination being, nevertheless, left to the jury, was justified by the record and well within the bounds of permissible comment. Morro v. Brockett, 109 Conn. 87, 91, 145 A. 659. The finding as to the evidence offered on the question of testamentary capacity affords sufficient warrant for the comment by the court to the effect that, in its opinion, a conclusion therefrom that the testatrix, at the time she executed the will, was of sufficient intelligence to know what she was doing, would be reasonable. The charge on this issue was accurate and adequate, and the duty of its determination was repeatedly and unqualifiedly committed to the jury.
Under the assignments relating to refusal to charge the jury in accordance with several of appellant's requests, it appears to be conceded that the essential propositions of law set forth or referred to therein, which were applicable to the issues involved, were charged with substantial accuracy. The complaint made is that the court, in applying those propositions to the facts of the case, failed to stress particularly certain claimed facts stated or emphasized in the requests to charge.
As to this, the requests exceeded in form and substance the limitations contemplated by the rule governing their submission. Practice Book (insert) p. 275. This specifies that requests shall state, separately, single propositions of law claimed to be applicable to the issues and facts of the case. It is for the trial court to give such further instructions as to the application of these principles of law to the facts as the circumstances reasonably require, the purpose being, not to supplant or supplement arguments of counsel as to the truth or significance of claimed facts, but to assist the jury in so applying the law to the facts as they find them to be as to lead to an intelligent and correct conclusion. Laukaitis v. Klikna, 104 Conn. 355, 360, 132 A. 913. The extent to which recital of conflicting claims of proof is advisable or helpful varies widely in different cases. Morosini v. Davis, 110 Conn. 358, 363, 148 A. 371. It is obvious that such claims made and set forth in requests by one party may not be included, properly, in a charge without a fair statement of opposing claims, nor should certain claimed facts be accorded a comparative weight or bearing beyond that to which they are legitimately entitled. Hobbes' Appeal, 73 Conn. 462, 468, 47 A. 678.
The will of the testatrix included a statement that the reason that she had not made provision therein for her husband, her daughter Mrs. Kast (the appellant), and her son George A. Turley was "that I have made adequate provisions for them during my lifetime, and rely upon my said son, James Anthony Turley, to make just provisions for them after my death if the circumstances and conditions warrant the same." The appellant requested a charge referring to this provision and that if the jury found that this statement as to provision for her husband and other children was not true "then you should take these facts into consideration and decide" whether the testatrix had testamentary capacity — understood what she was doing — or whether or not these statements were inserted in the will by reason of undue influence of James. The practical effect of such an instruction would be to convey an impression that the question of the truth of this statement in the will was a decisive criterion of the testamentary capacity of Mrs. Turley or of her subjection to or freedom from undue influence, and to magnify the importance and significance of these considerations. Also, to fairly present it would have required a discussion, further, of the many financial transactions in evidence, by which, the appellee claimed, these several persons, as well as the testatrix, had been aided by him in the past, and he had been recompensed therefor, to some extent, by transfer of property by the testatrix to him. In the charge as given, the particular attention of the jury was explicitly and clearly directed to the will itself and its provisions, and the circumstances under which it was executed and they were instructed to consider "whether, under all the circumstances disclosed, any of its provisions show indications of unsoundness or soundness of mind of the testatrix, or the exercise of undue influence upon her." This, taken in connection with other portions of the charge, was sufficient. Turner's Appeal, 72 Conn. 305, 321, 44 A. 310.
Another request sought to single out for special consideration, as tending to indicate exercise of undue influence, evidence that, in May, 1914, the testatrix made and delivered to James a deed of the dwelling-house in which she lived in Waterbury, and that he kept it in his possession, unrecorded, until February, 1928. Another referred, in the same manner, to the placing by the testatrix of her savings bank accounts in her name and that of James, jointly, and the withdrawal thereof by the latter. The conflicting evidence as to these transactions, and the claimed incentives and reasons for them were concisely but sufficiently reviewed by the trial court in the course of its charge, and correct instructions given as to their bearing upon the questions to be determined.
We discover in the finding no support for the assertion, in the ninth request, that the appellee gave testimony as therein attributed to him as to the treatment accorded her mother by the appellant, nor force in the claim that the giving of such testimony, if found untrue, should be taken as indicating that at the time of the execution of the will (in 1914) James was attempting to prejudice his mother against his sister. Goodno v. Hotchkiss, 88 Conn. 655, 664, 92 A. 419. The charge sufficiently and properly directed the jury to a consideration of the conditions surrounding the testatrix, her relations to and with her several children, and the reasons and motives suggested by the evidence as actuating her in making the disposition of her property contemplated by the will.
Especially as the appellant does not claim that the appellee occupied a relation of special trust and confidence to the testatrix, within Page v. Phelps, 108 Conn. 572, 143 A. 890, the instruction just mentioned and other portions of the charge sufficiently covered the requests (twelve and thirteen) pertaining to the position of the appellant with relation to the testatrix. The same situation obtains as to the request (fourteen) relating to the apparent preference by the will in favor of James over the other natural objects of testatrix's bounty, and the consideration (fifteen) as to whether such disposition was a natural or an unnatural act under all the circumstances. Wheeler v. Rockett, 91 Conn. 388, 394, 100 A. 13.
The record indicates that the appellant made no motion to set aside the verdict sustaining the will. This must be construed as implying that, if the charge was correct in law and sufficient for the guidance of the jury, the verdict rendered could have been arrived at reasonably upon the evidence presented. We hold that the charge was adequate to the requirements of the case.