Opinion
The proponents of a will are not required, even on demand by the contestants, to call all of the available attesting witnesses to the witness stand. It is sufficient if they call one of the witnesses and examine him to the extent necessary to make out a prima facie case of due execution and testamentary capacity. They must also, if timely demand is made on them prior to the opening of the contestants' case, have the other available attesting witnesses in court subject to being called by the contestants. The proponents in the present case were properly allowed to rest after making out a prima facie case through the testimony of one of the attesting witnesses. The proponents were three of the children of the testator, the contestants his other four children. A typewritten letter purportedly signed by the testator was offered in evidence by the proponents to show the testator's feelings toward the contestants. The signature had been identified by a witness for the contestants during his cross-examination by the proponents, but the offer of the letter as a full exhibit was quite properly withheld until the rebuttal. Held: 1. Since the writing offered in evidence was not witnessed, its authentication required proof merely of the signature of the writer. 2. The fact that no witness was on the stand when the letter was offered did not improperly deprive the contestants of the opportunity to examine witnesses as to the circumstances surrounding the writing of the letter. 3. The court could properly find that a proper foundation had been laid for the admission of the letter in evidence. The proponents and three of the contestants were the owners of the stock in certain family corporations which had been established by the testator. The effect of the contestants' direct examination of A, one of the proponents, was to leave the jury with the possible impression that the threats of some of the contestants, prior to the execution of the will, to have A removed as an officer and director of three of the corporations were innocuous and could not have been taken seriously by the testator. It was within the broad discretion accorded the court in the control of the cross-examination to allow the proponents to correct any such impression by questioning the witness as to whether he continued to hold his position with the corporations after the execution of the will. During the cross-examination of A, the proponents elicited evidence that one of the reasons for the ill will which the testator had toward two of the contestants was their conduct as officers and directors of two of the family corporations in wrongfully refusing to authorize payment of interest on five notes owed by the corporations to the testator or his wife. The contestants should, on redirect examination, have been allowed to introduce the notes in evidence to show that two of them bore no interest. Furthermore, the ruling allowing the proponents to develop evidence, during their recross-examination of A, that there had been a practice of allowing interest to be paid on all the notes may have violated the rule that cross-examination as to the contents of a writing is ordinarily not permitted unless the writing is in evidence. But any error in the foregoing rulings was harmless in view of the fact that at least three of the notes bore interest. The testator's statements showing his reaction to an altercation which took place between two of the proponents and two of the contestants after the execution of the will with respect to nonpayment of certain of the notes were admissible in evidence for the light they shed on the issues of undue influence and testamentary capacity. The testator's reaction was indicative of the importance in his mind, at the time the will was executed, of the prior conduct of the two contestants in refusing to authorize interest payments. A requested charge that the testator must know the contents of the will and comprehend and understand its provisions was too broad. It was susceptible to misinterpretation by the jury as requiring a precise knowledge and understanding of all legal terminology used in the will.
Argued May 7, 1963
Decided July 2, 1963
Appeal from a decree of the Probate Court for the district of Hartford admitting a will to probate, brought to the Superior Court in Hartford County and tried to the jury before Parmelee, J.; verdict and judgment for the defendants and appeal by the plaintiffs. No error.
Harry L. Nair, with whom, on the brief, was Jonathan S. Cohen, for the appellants (plaintiffs).
Wallace W. Brown, with whom was Robert E. Pritchard, for the appellees (defendants).
In September, 1959, Max Shulman, a resident of Hartford, died at the age of 89. He left a wife, Bella, and seven children, the issue of the marriage, who in the order of their respective ages are Maurice, Beatrice, Joseph, Sophie (Shulman) Walsh, Esther (Shulman) Wilkes, Lisbeth (Shulman) Levine and Albert. By a will of some length and complexity, dated March 19, 1958, and subsequently admitted to probate, the testator devised to his unmarried daughter Beatrice, who had resided in the parental home for many years, certain real estate, some of it subject to a life estate in her mother, and made bequests of $500 each to Esther, Maurice, Sophie and Joseph. The residue was given to Beatrice, Lisbeth and Albert, in trust, to pay over to Bella, for life, the income and so much of the principal, from time to time, as the trustees should deem necessary. At her death, the trust was to terminate, and seven parts of the corpus were given to Beatrice, five parts to Lisbeth and eight parts to Albert. Beatrice, Lisbeth and Albert were named executors and are the proponents in this appeal from the admission of the will to probate. The contestants are the other four children. The will was drawn by Attorney George Cutler, who had prepared three previous wills for the testator, one in 1946, one in 1950 andy one in 1956.
The 1956 will made a disposition of the property more favorable to the contestants than did the 1958 will attacked in this appeal. In 1952, the testator, who had established several family corporations which owned certain motion picture enterprises, turned over the stock in the corporations, in various amounts, to his children, other than Esther. At no time did Esther have any Interest in the corporations. After the 1952 transactions, the testator owned no interest in the corporations nor in certain family partnerships which were also owned by his children. Albert and Maurice held executive positions in the corporations, and they, as well as Beatrice and Joseph, held directorates in them.
While the reasons of appeal filed pursuant to 88 of the Practice Book in effect raised three issues — lack of due execution, lack of testamentary capacity and undue influence on the part of the proponents — actually there was no substantial support for the claim of lack of due execution, and the real controversy at the trial concerned the claims of lack of testamentary capacity and undue influence. See cases such as Livingston's Appeal, 63 Conn. 68, 75, 26 A. 470; Boschen v. Second National Bank of New Haven, 130 Conn. 501, 504, 35 A.2d 849. The jury found the issues for the proponents, and in answers to interrogatories they found that the will was duly executed, that the testator had the requisite testamentary capacity and that he was not unduly influenced by the proponents or any of them.
We consider such of the errors assigned by the contestants as have been pursued in their brief. we do not, of course, consider certain claims in the brief which were not raised at the trial. The claims of error addressed to the charge and those attacking rulings on evidence must be determined on the finding. Practice Book 400, 405; Pischitto v. Waldron, 147 Conn. 171, 176, 158 A.2d 168; Facey v. Merkle, 146 Conn. 129, 131, 148 A.2d 261.
The proponents called one of the three attesting witnesses to the will and examined him briefly as to the manner of execution of the will and as to the testator's mental condition at the time. There is no claim made that this testimony did not suffice to make out a prima facie case covering the two statutory issues of due execution and testamentary capacity in the sense that it was sufficient, if credited by the jury, to prove both issues. After the testimony of this single attesting witness, the proponents proposed to rest their case. At that point, the contestants objected and demanded that, before being permitted to rest their case, the proponents be required to call to the witness stand, and to examine on the issues of due execution and testamentary capacity, the other two attesting witnesses. The court overruled this claim, and the proponents rested. Thereupon, the contestants called the other two attesting witnesses, both of whom were in the courtroom, and examined them as part of their case in chief.
Expressions tending to support the contestants' position may be found in Field's Appeal, 36 Conn. 277, 280, Dale's Appeal, 57 Conn. 127, 132, 17 A. 757, Barber's Appeal, 63 Conn. 393, 401, 404, 27 A. 973, and Jarboe v. Home Bank Trust Co., 91 Conn. 265, 269, 99 A. 563. Expressions tending to support the proponents' position may be found in Livingston's Appeal, supra, 74, Pope v. Rogers, 93 Conn. 53, 55, 104 A. 241, and Gilman's Appeal, 115 Conn. 724, 725, 161 A. 845. As might be expected in the light of these somewhat inconsistent expressions, the statements by text writers are indecisive. 1 Locke Kohn, Conn. Probate Practice 213; 2 Locke Kohn, op. cit. 282, 316; Cleaveland, Hewitt Clark, Probate law and Practice 357, 385, 386; see also 1 Swift, Digest, p. 442.
As a matter of trial strategy, it may be that the proponents should ordinarily call all of the attesting witnesses available and within the reach of process and examine each to the extent, at least, of making out a prima facie case of due execution and testamentary capacity. On the other hand, this procedure is not the exclusive method of proving a will. Pope v. Rogers, supra. Especially is this so there, as here, the will contains the statutory affidavit as to due execution and testamentary capacity. General Statutes 45-166; Vivian's Appeal, 74 Conn. 257, 259, 50A. 797.
The sound rule is the one claimed by the proponents, that is, that they are not required as matter of law, even on demand by the contestants, to call to the witness stand and examine, to the extent necessary to make out a prima facie case of due execution and testamentary capacity, more than one of the attesting witnesses available and within the reach of process. Gilman's Appeal, 115 Conn. 724, 725, 161 A. 845; Livingston's Appeal, 63 Conn. 68, 75, 26 A. 470. But it is necessary for the proponents, if timely demand is made on them prior to the opening of the contestants' case, to have in court, subject to being called to the witness stand by the contestants, all of the attesting witnesses available and within the reach of process. See Barber's Appeal, 63 Conn. 393, 401, 27 A. 973; Field's Appeal, 36 Conn. 277, 280. The proponents did have in court the two attesting witnesses who were not called to the witness stand. This was all they were required to do, and there was no error in the court's ruling to that effect.
The contestants objected to the admission into evidence of a letter, purporting to be that of Max Shulman, which had been received by Attorney Albert S. Bill, in answer to a letter which Attorney Bill had written and mailed to the testator. The letter had been produced by counsel for the contestants from his own files, on demand made upon him by counsel for the proponents, and was admitted to show the feelings of the testator toward the contestants. That the letter, if properly authenticated, was admissible for this purpose is obvious and is not questioned. The basic contention of the contestants, made at the time of the offer of the letter in evidence during the proponents' rebuttal, was that no proper foundation had been laid for the admission of the letter. The letter was typewritten and bore the signature of Max Shulman. During the cross-examination by the proponents of Attorney Cutler, a witness called by the contestants, the signature had been verified and the letter had then been marked for identification. Upon this foundation, it was within the court's discretion to admit the letter as an exhibit when it was subsequently offered in evidence by the proponents, since it had been, at least prima facie, properly authenticated under the familiar rule that where a writing is not witnessed, its authentication ordinarily requires proof merely of the signature of the writer. Neil v. Miller, 2 Root 117, 118; Max Ams Machine Co. v. International Assn. Of Machinists, 92 Conn. 297, 305, 102 A. 706; Berman, "A Connecticut Commentary on Authenticating Private Documents," 28 Conn. B.J. 173, 176; 20 Am.Jur., Evidence, 930; 32 C.J.S., Evidence, 706(a); 7 Wigmore, Evidence (3d Ed.) 2134, 2135; see also Fasanelli v. Terzo, 150 Conn. 349, 358, 189 A.2d 500; 20 Am.Jur., Evidence, 956.
Although this determination is dispositive of the assignment of error adversely to the contestants, one further ground of objection to the admission of the letter perhaps should be mentioned. This ground was that the letter should not be introduced into evidence without "any opportunity of cross-examination" as to the circumstances surrounding the writing of the letter, namely, "who wrote . . . [the letter], where it was written, how it was written and the reason why it was sent." The letter was not actually admitted as an exhibit until just before the close of the proponents' rebuttal evidence, and at the time of its admission no witness was on the stand. No witness, however, was then needed since, as previously pointed out, the letter had already been sufficiently authenticated by Attorney Cutler, had been marked for identification, and was clearly relevant for the purpose for which it was received. The contestants did not make any request that the proponents keep Attorney Cutler available for further examination by the contestants in case the letter should be subsequently offered in evidence by the proponents. Obviously, the action of the proponents in having the letter marked for identification was purposeless unless they intended subsequently to offer it in evidence, and of course the contestants must have known this. It does not appear that the contestants made any effort, on their redirect examination of Attorney Cutler, or in any other way, to examine him as to the genuineness of the signature or of the letter. Thus, they were not, and could not have been,
It is hardly necessary to point out that such an examination would not have constituted an examination of a witness on the contents of a document not in evidence, in violation of our rule as laid down in cases such as Johnson v. Charles William Palomba Co., 114 Conn. 108, 115, 157 A. 902; 58 Am.Jur. Witnesses, 643. Rather, it would have constituted a preliminary or interlocutory examination