Opinion
Opinion filed January 5, 1937.
P.L. 2977, Pretermitted Children — Burden of Proof as to Omission from Will and Accident or Mistake — Purpose of P.L. 2977 — Will not Defeated or Amended by Establishment of Statutory Rights — Omission of Child from Will Not Evidence of Accident or Mistake — Parol Evidence of Accident or Mistake Admissible — Test of Relevancy — Evidence Held Admissible against Objection Parol Evidence Inadmissible — Evidence as to Attitude of Favored Son Toward Son Omitted Irrelevant and Prejudicial — Evidence Sufficient to Make Jury Question — Motion to Set Aside for Alleged Trial Errors.
1. A child claiming rights granted by P.L. 2977 relating to children or issue of deceased children of testator omitted from will by accident or mistake has burden of proving that he was left out of the will and that the omission was the result of accident or mistake.
2. The purpose of P.L. 2977, granting certain rights to children or issue of deceased children of testator omitted from will by accident or mistake, is to guard against the inadvertent and unintentional omission of children and their issue from the will of a parent or grandparent.
3. A child claiming rights granted by P.L. 2977, relating to children or issue of deceased children of testator omitted from will by accident or mistake, does not seek to defeat or amend the will itself or to impeach it in any way, but to have established a right under the statute unaffected by the will.
4. A will making no mention of a child is completely colorless as evidence whether the omission to provide for him occurred through accident or mistake, but if the will mentions his name, it disproves the fact of accident or mistake.
5. Relevant parol evidence is admissible in proceedings to establish rights granted by P.L. 2977 on the issue as to whether the omission of a child from a will occurred through accident or mistake.
6. Any fact or circumstance that would render more probable the theory that a child was omitted from a will through accident or mistake would be relevant and admissible on the issue.
7. On appeal to county court from disallowance by probate court of claim to rights as pretermitted child under P.L. 2977, admission of testimony that son named executor and given bulk of estate was appointed guardian of testator several years before will was executed and from that time on exercised control over him held proper where only exception that had been saved at time of such admission was that evidence to establish alleged accident or mistake must be found in the will and no extraneous evidence was admissible.
8. In such proceedings, evidence that son appointed guardian and favored in will was unfriendly to son claiming to have been pretermitted and saw to it that testator knew why he disliked him, held irrelevant and prejudicial and hence inadmissible.
9. In such proceedings, on executor's motion for directed verdict, evidence held sufficient to make jury question.
10. In such proceedings, motion to set aside verdict based on alleged trial errors held properly overruled.
APPEAL to county court from disallowance by probate court of claim to rights as pretermitted child under P.L. 2977. Trial by jury at the June Term, 1936, Windsor County, Sturtevant, J., presiding. Verdict and judgment for the appellant. The appellee excepted. The opinion states the case. Reversed and remanded.
Wm. S. Pingree and Fred B. Thomas for the executor appellee.
Gilbert F. Davis and Fenton, Wing Morse for the claimant appellant.
Present: POWERS, C.J., SLACK, MOULTON, and SHERBURNE, JJ., and JEFFORDS, Supr. J.
William H.H. Dugan, a man somewhat more than ninety years of age, died testate on June 19, 1934, having made a will on April 19, 1923, giving his entire estate (except a trifling gift to his grandson) to his son, Birnie L. Dugan. When this will was made, the testator had another living son, Gilbert Dugan, the appellant. This will was duly probated and established, and Birnie L. qualified as executor and administered the estate. He presented his final account to the probate court and asked for a decree of distribution. On the day appointed for the hearing thereon, Gilbert appeared before the court with counsel, and claimed that he was entitled to the same portion of the estate that he would have inherited if William had died intestate. He predicated this claim on P.L. 2977 which reads as follows: "When a testator omits to provide in his will for any of his children, or for the issue of a deceased child, and it appears that such omission was made by mistake or accident, such child, or its issue, shall have the same share of the estate of the testator as if he had died intestate, to be assigned as in cases of intestate estates."
Gilbert's claim was disallowed by the probate court, and he appealed. A jury trial was had in the county court, and the only question there submitted was whether the omission of the testator to provide for Gilbert in his will was due to mistake or accident. To this question, the jury returned an affirmative answer, and judgment was rendered accordingly. Birnie L. excepted.
It is obvious that the burden of proof was on the claimant, Gilbert. The language of the statute admits of no other construction; for, unless it is made to appear (1) that he was left out of the will, and (2) that this omission was the result of an accident or a mistake, he has no standing in court. Brown v. Brown, 71 Neb. 200, 98 N.W. 718, 115 A.S.R. 568, 574, 8 Ann. Cas. 632.
The purpose of the statute before us seems plain. It was passed to guard against the inadvertent and unintentional omission of children and their issue from the will of the parent or grandparent. Under it, a pretermitted child does not seek to defeat or amend the will itself. He does not seek to impeach it in any way. He seeks to have established a right unaffected by it. He does not seek a right under the will at all, but a right under the statute. Wilson, Exr. v. Fosket, 6 Metc. (47 Mass.) 400, 405, 39 A.D. 736; Coulam v. Doull, 133 U.S. 216, 33 L. ed. 596, 601, 10 Sup. Ct. 253.
Gilbert made use of the will as evidence that he was left out of it, and for that alone. He sought to bring himself within the statute my making it appear that this omission was due to accident or mistake. How could he do this except by evidence aliunde the will? If for this purpose one in his situation could prove this independent fact only by the will itself, the statute would be utterly useless in most, if not in all cases. The will in this case makes no mention of Gilbert. As evidence of accident or mistake it is completely colorless. If it had even mentioned his name, it would have disproved the fact of accident or mistake.
The admission of parol evidence at the trial on this issue is justified by the great weight of authority, including among other cases, Whittemore v. Russell, 80 Me. 297, 14 A. 197, 6 A.S.R. 200; In re Foster's Will, 118 Me. 67, 105 A. 812; Brown v. Brown, 71 Neb. 200, 98 N.W. 718, 115 A.S.R. 568, 572, 8 Ann. Cas. 632; Wilson, Exr. v. Fosket, 6 Metc. 400, 404, 405, 39 A.D. 736; In re Estate of Stebbins, 94 Mich. 304, 54 N.W. 159, 34 A.S.R. 345, 348; Whitby v. Motz, 125 Minn. 40, 145 N.W. 623, 51 L.R.A. (N.S.) 645, 649; In re O'Connor, 21 R.I. 465, 44 A. 591, 79 A.S.R. 814; note, 94 A.L.R. 209, wherein it is said that such evidence is held admissible in all the states except California; Coulam v. Doull, 133 U.S. 216, 33 L. ed. 596, 601, 10 Sup. Ct. 253.
But because the rule admits parol evidence in such cases, it does not follow that all such evidence could properly be received. There is always for consideration the question of relevancy; and any fact or circumstance that would render Gilbert's theory the more probable, would be relevant and admissible. State v. Vadney, 108 Vt. 299, 187 A. 381, 382; Gomez Co. v. Hartwell, 97 Vt. 147, 155, 122 A. 461. On the contrary, any fact or circumstance that did not have that tendency, would be irrelevant and inadmissible. Lewis v. Barker, 55 Vt. 21, 22.
The claim is made that it was error to admit testimony that Birnie L. was appointed guardian of the testator several years before the will was drawn and that from that time on he (Birnie) had and exercised control over him. But at the time this evidence came in the only objection that had been made and the only exception that had been saved was that the evidence to establish the alleged accident or mistake must be found in the will and that no extraneous evidence was admissible. So as against that objection and exception this evidence was admissible, as we have already seen.
But the claimant was allowed to go further, and to give evidence tending to show that Birnie was unfriendly to Gilbert, and that he saw to it the testator knew why he disliked him. When the course of the examination of Birnie as a witness indicated what the examiner was after, counsel for the witness interposed a special objection on the ground that the evidence would be "incompetent, irrelevant, and immaterial." This objection was overruled and an exception allowed. The testimony thus admitted was to the effect stated above. It should have been excluded. It was wholly unimportant what the feeling of the witness was toward his brother. This evidence had nothing whatever to do with the issue being tried, and was wholly irrelevant thereto. Norton's Admr. v. Perkins, 67 Vt. 203, 216, 31 A. 148, 149, wherein it was held error to allow the plaintiff to testify that he did not visit his father, the intestate, while he was at the defendant's, because he did not think the latter was "a man of very good disposition, and he isn't a man I wish to associate with anyway." See, also, Belock v. State Mut. F. Ins. Co., 108 Vt. 252, 185 A. 100, 102. The testimony was of a character well calculated to divert the attention of the jury from the real question they were to decide, and to prejudice them against Birnie and in favor of Gilbert.
When the testimony in regard to Birnie's informing his father of the nature of his trouble with Gilbert was offered, an other objection was interposed and an exception asked for "on the grounds stated." This was granted and we think that the course of the trial as shown by the transcript sufficiently indicates that everybody understood that the relevancy of the evidence was challenged. This evidence, too, was wholly irrelevant, and harmful and prejudicial in character.
These errors require a reversal.
At the close of the evidence, a motion for a directed verdict was made in Birnie's behalf, which was overruled, and an exception was saved. We find no error here. There was sufficient evidence tending to establish the claim of Gilbert to send the case to the jury, and this is so plain to us that we see no reason for analyzing it.
There was also a motion made to set aside the verdict based on alleged trial errors, which was properly overruled. Woodsville Sav. Bk. v. Rogers, 86 Vt. 121, 123, 83 A. 537.
Judgment reversed and cause remanded.