(113 A.)

of the husband were admissible, where such | in its discretion, admit or exclude without legal documents showed that the residuary legatee error in the issue of undue influence of such had been intrusted with the management of the trustee, who was residuary legatee under the husband's estate as executor and trustee, and will of the testatrix. were evidence of his "confidence in and respect for" the residuary legatee, which testatrix declared as the motive for making such person legatee under her will.

In a will contest on ground of undue influence, a letter of contestant to a trustee under the will of testatrix's husband offered for the purpose of showing that contestant was insisting on getting an income at once and was going behind the backs of the trustees for inEdward Wells, husband of the testatrix, formation as to when some dividend might be died in February, 1907, leaving a will, and paid, held remote, but such that the court might, | survived, as heirs at law, by his widow and

the weeks just prior to April 27, 1916, he was in frequent correspondence with her on the subject and occasionally saw her at her residence. In the troubles and controversies over the last bond and the question of Mr. Ward's resignation the testatrix sided with Mr. Ward and emphatically expressed to Mrs. Sykes her disapproval of the course being taken.

October 25, 1916, the testatrix sent a check of $10 to Mrs. Sykes' daughter Martha, who was then away from home at school, with a letter telling her to use it for something she wanted for her room. On November 1, 1916, Martha wrote the testatrix the following letter:

a daughter by a former marriage, Anna | resignation and showed her the request and Wells Sykes, wife of James G. Sykes. His the reports of the audit company. During two wives were half-sisters, so Mrs. Sykes is a niece as well as a stepdaughter of Effie E. P. Wells. Hannah P. Wells is a halfsister of the testatrix and the widow of Charles Wells a deceased brother of Edward. Effie E. P. Wells deceased October 19, 1919, at the age of 66 years, after an illness of six days of pneumonia. The contestants are her only heirs at law. Her will was holographic, executed October 4, 1917. The largest part of the testatrix's property came to her by the will of her husband. Mr. Wells left a large estate, the bulk of which was disposed of under his will in the following manner: The widow took one-third in fee and the remaining two-thirds was constituted a trust fund with Mrs. Sykes and her children as beneficiaries. Henry L. Ward, one of the proponents of the will, in controversy, with others (brothers of Edward Wells) was a trustee of this fund for some eight years, resigning the trust in September, 1916, after Mrs. Sykes became dissatisfied with his services, as will later appear. He is the residuary legatee under the will of Mrs. Wells, and the contestants claim unduly influenced its making. Mr. Wells was for many years president of the Burlington Trust Company, during which time Mr. Ward was successively a clerk, assistant treasurer, and treasurer of the trust company. Some time after Mr. Wells' death he became its president.

"Dear Grandma: I just received word yesterday saying that I could not keep the money you sent me and that I must send it back. I am so sorry and thank you so much all the same for sending it and for thinking about me. As I had already cashed the cheque I am sending breakfast bell has rung so I have no time for back a bill which you will find inclosed. The more. I am so sorry. Love to all.

"Your loving granddaughter, Martha." On November 2, 1916, the testatrix replied: "My dear Martha: Your note with the money came this morning. I am very sorry I have caused you any trouble, never thought but it would be all right. I had sent you a birthday gift, so suppose I cannot send you or Elizabeth a Xmas gift, and not finish giving you the and always have and please do not forget your spoons I had started in with. I love you dear

the good times we have had. The memory of
the times we have had together cannot be taken
from us. Nora often speaks of you both, as
many of your friends do. I hope dear you will
keep well and enjoy your school. Please love
me and not forget us here. Sometime you will
understand.
Your loving grandmother."

This letter came to the attention of Mrs. Sykes soon after it was written. No communication passed between the testatrix and Mrs. Sykes or her daughter subsequent to these letters. The evidence tended to show that the grandchildren never visited the testatrix after the check episode, although they had previously visited her a portion of each summer save one, when infantile paralysis was prevalent in Burlington.

The business, and securities of the trust fund were kept by the trustees at the bank-grandmother. Think of me once in a while and ing rooms of the Burlington Trust Company, and Mr. Ward had the active management of the trust. The contestants showed that about the last of November, 1913, a bond of the commonwealth of Massachusetts of $250,000, registered in the name of the trustees, and part of the trust estate, was lost. Mr. Ward at once assumed all responsibility for the loss, and took steps for the restoration to the assets of the estate of a duplicate bond. He procured such duplicate to be issued by the commonwealth and delivered to the trustees in November, 1915, without expense to the estate. On hearing of the loss of the bond Mrs. Sykes consulted counsel and undertook to ascertain the facts and protect her interests. An examination of the books and accounts of the trust estate was made by an audit company soon after the bond was restored. On the basis of the company's reports steps were taken by counsel employed by Mr. Sykes to secure Mr. Ward's resignation as trustee, and the suggestion was made that if refused steps would be taken looking to his removal. Mr. Ward signed a resignation April 27, 1916, which was held in escrow. He finally filed a resignation in September, 1916. Mr. Ward promptly in

Mrs. Sykes receives nothing under the terms of the will. Hannah P. Wells, the other contestant, receives $5,000, and each of her four children a like sum. Provision is made for Mrs. Sykes' daughters, Martha and Elizabeth, by trust funds of $30,000 each. The only provision of this trust that need be noticed is the provision that if both die before reaching the age of 45 years leaving no issue, both funds are to revert and become part of the residuary estate.

(113 A.)

en to the admission of a letter written October 30, 1919, by Mrs. Sykes to one Margaret Huston in reply to a letter of condolence on the death of the testatrix, admitted against the contestants' objection that the evidence was incompetent, immaterial, written some time after the death of Mrs. Wells, never could have been called to her attention, and that it contains no admission which in any way tends to impeach the testimony given by Mrs. Sykes. As a witness in her own behalf Mrs. Sykes had testified in direct examination that from her earliest recollection until the time she received a letter from her stepmother about February 28, 1916, which was in evidence, the relations between herself and the testatrix had always been of the pleasantest; that they were devoted to each other, and there had not, to her knowledge, been any interruption of such relations. The portion of the letter upon which the claim of its admissibility was based is as follows:

"I do not know if either of you knew it but she has not spoken or written to me in a number of years-ever since Mr. Ward lost a very valuable bond of mine and in loyalty to my father and trying to protect my children's property I made him make good. It was purely a business matter but she took sides with him against me and she has-by her will-cut me off from my home and the property but practically left my children out too-giving everything except a few bequests to Mr. Ward-house and all. You can imagine how this hurts me-for it has been very hard all these years to be so misjudged-when it was all a business matter and had to be settled in a business way. I went to her in her illness with forgiveness and love in my heart and all this has been almost more

answer proper. It is urged in support of the exception then taken that the witness was not required to state the things upon which she based an opinion; but on the record the contrary must be assumed, which disposes of the contestants' objection and brings the case clearly within the rule permitting a witness to add his conclusion, judgment, or opinion. See State v. Felch, 92 Vt. 477, 486, 105 Atl. 23, and cases there collected.

[4, 5] The proponents called Charles P. Smith as a witness, and inquired of him concerning his acquaintance and business relations with Edward Wells and Henry L Ward. Some questions of a similar nature were asked concerning brothers of Mr. Wells, who were associated with him in business, and concerning the father and a brother of Mr. Ward, who had been the witness' business associates. It was objected that this line of testimony was immaterial, but it was admitted as preliminary. It is not worth while to examine this evidence in detail. Much of it was clearly introductory, and none of it was of a character to prejudice the contestants. It should be remembered that to sustain an objection on the ground of immateriality alone it must be made to appear that the evidence is clearly irrele vant (Slayton Tr. v. Drown, 93 Vt. 290, 294, 107 Atl. 307), and also prejudice must be made to appear. Against the same objection the witness was permitted to testify that during the time Mr. Wells was president of the Burlington Trust Company the work of the bank was actively performed by Mr. Ward; that he was the active man; that he had conversations with Mr. Wells respecting the bank and bank matters; and that witness knew of the esteem that Mr. Ward was held in by Mr. Wells. It is now urged that the only issue then before the court was as to the testatrix's capacity to make a will, held by any or all of these people (referring to Mr. Wells and his brothers) was immaterial. If we give the force to the witness' relations between her and the testatrix which was a material issue in the case. The testimony respecting Mr. Wells' "esteem" objection made for the first time in this for Mr. Ward that the contestants claim for court that it was error to receive this evi- it, viz. a high regard, still with the prelimdence because its application was not liminary testimony it was relevant to the issue ited to Mrs. Sykes as a contestant in any of testamentary capacity. It became mateevent comes too late to avail. In re Estaterial for the proponents to show that what of Martin, 92 Vt. 362, 367, 104 Atl. 100.

than I can bear. I can never forget her loving care for me but every year since father's death -it has been harder and harder as she has shown me so clearly that her love for me was not what I thought."

That the letter was admissible as tending to contradict Mrs. Sykes on a matter of vital importance is at once manifest. Besides it was an admission on her part respecting the

[3] Mrs. Ward, wife of the proponent Ward was being examined as a witness by proponents' counsel. After she had been asked to tell what the testatrix's manifestations as to feelings toward her were-whether affectionate or otherwise-and had auswered "affectionate," it was objected that it was a matter of interpretation, counsel adding, "She can tell what was done, that the jury may understand and determine." The court observed that she had already indicated that

and that the esteem in which Mr. Ward was

was true.

the testatrix wrote and said respecting Mr.
Wells' regard for Mr. Ward
Among such statements is this from the
clause of the will making Mr. Ward a benefi-

ciary:

"I do this in memory of my husband and in recognition of his confidence in and respect for Mr. Ward, through a long and intimate business acquaintance, and for his great kindness and valuable services extended to me since my husband's decease."

True, the question first asked was whether

"these several Wells people," which includ-[trix's disposition of her property. It fairly ed Edward Wells. But the answer, "I think appears that the testatrix was acquainted I should say yes," was not under exception. with the contents of these documents. The The next question, evidently intended to will showed the relative provisions that Mr. show what their estimate was, was inter- Wells had made for his widow and daughter. rupted by a special objection that the esteem The executor's account tended to show the of anybody outside the Edward Wells' fam- amount and disposition of Edward Wells' esily for Mr. Ward could have no bearing up- tate, and so, the source and amount of the on the case, whereupon the question confined testatrix's estate and the extent of the proto Edward Wells was answered, "I did." vision made by Mr. Wells for Mrs. Sykes and This answer was under exception. her children. The trustees' account likewise tended to show Mrs. Sykes' financial condition and the amount she had and would receive out of the family estate. Moreover, the fact, evidenced by these documents, that Mr. Wells had intrusted the management of his large estate to Mr. Ward as executor and trustee was evidence of his "confidence in and respect for" the latter, which the testatrix declared as a motive for making Mr. Ward a beneficiary under her will. The facts disclosed in these documents afford the basis of reasonable inferences in support of the facts in issue, which meets the objection to their admissibility. Gilfillan v. Gilfillan's Estate, 90 Vt. 94, 101, 96 Atl. 704.

[6] F. L. Roberts was called as a witness by the proponents, and produced the ledgers of the Burlington Trust Company for the purpose of showing the entries of transactions with different customers at the bank. The record shows that, an objection being interposed, a colloquy ensued in which court and counsel participated. To meet any inference from questions asked of their witnesses in cross-examination that Mr. Ward was the only person who handled Mrs. Wells' business-that the entries in the bank were in Mr. Ward's handwriting-the proponents offered to show that he was not only doing that, but all the other business; that it was just a part of the bank business. The court intimated that the evidence might be out of time, but to accommodate the witness admitted it then as matter of discretion, and noted an exception by the contestants. Certain pages of the ledgers, which are referred to and made a part of the exceptions, were inquired about under this exception, but the ledgers have not been produced, and if they were before us the result would be the same, for the record is wholly silent as to what inquiries were made, and it will be presumed that the evidence was material, there being no showing to the contrary. In re Estate of Martin, supra.

[10, 11] Mr. Ward was called as a witness for the proponents, and was inquired of generally concerning his business relations with Edward Wells. Against the objection that it was immaterial he was then permitted to testify with reference to certain trips with Mr. Wells through the West on business connected with the bank, and, against the additional objection that it was too remote, that in 1904 they made a trip to Washington to attend a bankers' convention. On this record, the question of remoteness was for the trial court and is not reviewable. See Wellman, Adm'r, v. Mead, 93 Vt. 322, 334, 107 Atl. 396; Smith v. Martin, 93 Vt. 111, 128, 106 Atl. 666. That this line of evidence was relevant to the issue of testamentary capacity is shown by what we have already said respecting the fourth exception.

of Mrs.

[7-9] The contestants brief together exceptions numbered 6, 7, 8, and 9. These exceptions challenge the admissibility of certain documentary evidence, admitted against the general objection of immateriality. The first [12] In the cross-examination was the check sent by the testatrix to the Sykes, called as a witness in her own behalf, granddaughter, Martha. Counsel stated that she was shown and identified her father's they did not object to the signature of Mrs. letter copy book. Copies of certain letters Wells or to the check's being shown, but did written to her and her husband by Mr. Wells object to "the receiving the money and the between July 1, 1901, and September, 1916, signing of the check by this young girl." were shown to her, and she testified that she There is nothing in the record indicating that had either read them at the time or knew of the check was received for the purposes ob- their contents, and had talked over the subjected to. The fact that the money was ject-matter of the letters with her father. received and returned by Martha was shown The copies were admitted in evidence against by other evidence, and does not appear to the objection of immateriality, incompetency, have been in dispute. The other documents and remoteness. They were offered collectobjected to as immaterial were certified ively, and the objection was unlimited; so, copies (1) of the will of Edward Wells; (2) if any of the letters were admissible, the exof the executor's account in the estate of Ed- ception cannot be sustained. Crahan v. Chitward Wells; and (3) of the trustees' account tenden, 82 Vt. 410, 415, 74 Atl. 86. It was in that estate. It requires no extended argu- conceded that Mr. Wells gave Mr. and Mrs. ment to show that these documents evidenced Sykes $50,800 between the time of their marmaterial facts. They were all part of the riage in 1901 and his death, and in addition history of the present controversy, and tend- $19,500 to Mr. Sykes to purchase stock in a

(113 A.)

on the preceding one. The question raised is of the same character, and is controlled by the disposition of that exception.

ed. Mrs. Sykes had testified in direct exami- [tion merely by reference to their argument nation that neither she nor her husband had ever asked her father for money; that he had always given them what he had freely, without solicitation; and that he had never expressed any disapproval of their expenditure of money.

[13] As to the objection for remoteness, we cannot say that the evidence was so remote that its admission would not be a proper exercise of judicial discretion. Smith v. Martin, supra. Especially is this so in view of the issues being tried. We said in Re Esterbrook's Will, 83 Vt. 229, 241, 75 Atl. 1, that in a will case, where lack of testamentary capacity on the part of one not before the court and undue influence exerted upon such an one are the grounds of contest, there are a few and but a few artificial rules to be

[15] A letter from Mrs. Sykes to her uncle, Frederick H. Wells, one of the trustees, dated December 5, 1915, was received in evidence against contestants' objection that it was immaterial. The portion of the letter relied upon reads:

"I am sorry to have to ask you to request Mr. Ward to send me a complete list of securities in order that I may fill out my income tax list. The only one I ever had was at the distribution of the estate years ago. And would you ask Mr. Besett to be kind enough to let me know if a dividend is declared at any time, so I may get the money at once."

It was offered for the purpose of showing applied. The great problem of whether or that Mrs. Sykes was insisting on getting the not the instrument offered for probate is income at once, and that she was going bethe product of a disposing mind acting freely hind the backs of the trustees for information in view of all the affection, sympathy, conas to when some dividend might be paid. To fidence, indifference, and distrust, likes and get the true perspective of this exception it dislikes, memories, purposes, and anticipa-will be necessary to recall the trusteeship tions engendered, it may be, throughout a controversy and the part it played in estranglifetime, demands solution through an inves- ing the testatrix from Mrs. Sykes. It fairly tigation befittingly untrammeled, and the inappears that Frederick H. Wells was coquiries must, for the most part, be carried operating with Mrs. Sykes in this controveron in accordance with liberal rules of pro- sy, and that the testatrix became extremecedure. We said recently that the range of ly bitter because of their attitude toward Mr. the inquiry depends upon the circumstances Ward. It had appeared in evidence that the of the case, and rests larely in the discretion testatrix understood and had stated that Mrs. of the trial court. In re Estate of Martin, Sykes had pressed Mr. Ward as trustee for money. Any evidence tending to show that the testatrix's feelings and statements were founded on facts would, of course, be mate

92 Vt. 362, 365, 104 Atl. 100.

Any possible doubt as to the correctness of the ruling is removed by an examination of the letters. Some of them tend to contradictrial. We do not think the court erred in Mrs. Sykes' testimony referred to above, which alone would defeat the exception.

may admit or exclude without committing legal error. In re Estate of Martin, supra.

admitting this letter, as it tended to show Mrs. Sykes' attitude toward Mr. Ward as [14] Other letters show the circumstances trustee and her lack of confidence in him. It attending the gifts of money from time to fairly indicated that she was insistent time and still others disclose disapproval of (though perhaps rightly so) upon the income apparent extravagance. It is not claimed that the testatrix did not know about these if somewhat remotely, tended to show that being paid over once it was received; and, letters, but it is contended that if she did the she had been pressing Mr. Ward, the active correspondence between Mr. Wells and Mr. trustee, for money. Doubtless, it is only reand Mrs. Sykes would have no bearing upon motely relevant, but it falls in that class of the question of her mental capacity. How-evidence which the court in its discretion ever, the knowledge of the facts disclosed by the correspondence would not be irrelevant. Knowledge of what Mr. Wells had done for the Sykes family and their extravagant use of money would have a legitimate bearing upon the reasonableness of the will. Besides Mr. Wells' letters, expressing disapproval of their extravagance, became admissible to prove the truth of the testatrix's statement in a letter to Mrs. Sykes that "he (Mr. Wells) had talked your case over with me many times and worried about it, far too much for his good," as bearing upon testamentary capacity. The point made in argument that this evidence should not have been admitted against Hannah P. Wells was not made below, and cannot be relied upon.

[16] Mrs. Annie Parker, a witness called by the proponents, having a paper in her hands which she was referring to, was asked to state whom she met at the testatrix's house in 1916. The question was objected to, counsel stating:

"We desire to have it appear that this paper the witness is using to refer to had not been identified, not being shown to the court, or that the witness desires or needs anything to refresh her recollection."

The court admitted the answer, which named several persons, and noted an exception. Immediately following this, and sub