Schander v. Gray

This is a contest over the admission to probate of the last will of Bertha M. Dolbeer. The contest was instituted by a maternal uncle of deceased upon the sole ground that at the time of the making of the will Bertha Dolbeer had not testamentary capacity, by reason of her insanity. The cause was tried before a jury, which jury rendered a unanimous verdict in favor of the proponents.

Contestant concedes the sufficiency of the evidence to. support the verdict of the jury, but urges certain rulings of the court in admitting and rejecting evidence, and in giving and refusing to give instructions to the jury as grounds for reversal. Respondents meet this with the argument that the concession of the appellants that the evidence is sufficient to support the verdict does not go far enough, that in truth the evidence admitted in the case, even considered with all the offered and rejected evidence of contestant, would support no other verdict than that which was given. Proponents, therefore, invoke the application of the rule,-'well settled, that where the result could not have been different this court will not disturb a judgment for errors which have not prevented a party from making out a case, or for rulings which, had they all been in his favor, still would not have entitled him to a judgment. (In re Spencer, 96 Cal. 449 , [ 31 Pac. 453 ]; Duffy v. Duffy, 104 Cal. 607 , [ 38 Pac. 443 ] ; In re Briswalter, 72 Cal. 107 , [ 13 Pac. 164 ]; Chapea Water Co. v. Chapman, 144 Cal. 366 , [ 77 Pac. 990 ].)

It becomes necessary, therefore, even at some length, to consider the facts presented by the evidence actually received, and then the effect which might have been worked by the admission of rejected evidence or by the exclusion of admitted evidence which was objected to.

The burden was upon the contestant to show affirmatively and by a preponderance of evidence the insanity of the testatrix, and the evidence is to be considered in view of this burden which the law casts upon him. (Code Civ. Proc., sec. 1312; In re Wilson, 117 Cal. 262 , 270, [ 49 Pac. 172 , 711]; Estate

Bertha M. Dolbeer, at the time of her death, was twenty-seven years of age. Her parents, John Dolbeer and Harriet Schander, married in 1872. Of the two children born to them Bertha alone survived. In 1879, when Bertha was two years of age, her mother committed suicide by shooting herself with a pistol. At the time of her death there were living two brothers and a sister of Mrs. Dolbeer. One of these brothers is the contestant in this case. From 1879 until the time of her death, July 9, 1904, the testatrix never saw and never spoke to either of these uncles, and this contestant knew her only by sight, because she had been pointed out to him. Of the two sisters of Mrs. Dolbeer, a daughter of one who is dead, Ethel Boche, is given ten thousand dollars by Bertha’s will; the other sister is Mrs. Moody, who has three daughters and one son. Mrs. Moody, her eldest daughter, and her son never spoke to John Dolbeer, father of Bertha, and he never spoke to them. They never crossed the threshold of his home while he lived and never entered the daughter’s home after her father’s death. With the other two of Mrs. Moody’s daughters Bertha Dolbeer was on friendly terms. They visited the Dolbeer home and made various excursions with the father and daughter. Bertha Dolbeer visited Mrs. Moody’s home and was on terms of casual acquaintance with her, the son, and the daughter above mentioned. Mrs. Breeden, one of the daughters with whom she was on terms of friendship and intimacy, is dead; the other daughter is Mrs. Watson, whose husband was one of the subscribing witnesses to the will. To sum up, the next of kin of Bertha Dolbeer at the time of her death are all maternal relatives, the brothers and sister of her mother. With the brothers she had no acquaintanceship whatever. As to the sister, Mrs. Moody, while MissDolbeer was a not infrequent visitor to her house, her friendship was wholly for the two daughters, Mrs. Breeden, now dead, and Mrs. Watson, still living.

John Dolbeer had accumulated a large fortune. By his will, after numerous bequests and legacies, the major part of this fortune was given to his only child, Bertha. Her will disposes of property of a value exceeding one million dollars.

When Bertha Dolbeer was eleven years of age there entered

By the will of Miss Dolbeer the principal portion of her large estate is left to Miss Warren. In her will Miss Dolbeer describes Miss Warren as “my devoted friend,” and the record is full of evidences of her affection, of her devotion, and of her gratitude to this lady. She had been her friend, companion, and confidant from her earliest girlhood years. She took Miss Warren’s middle name, Marion, and adopted it as her own, calling herself Bertha Marion Dolbeer. She spoke of her always in the most endearing terms. “She was the best friend a girl could have.” “Miss Warren had done everything for her in every possible way, and all she hoped was that she could live long enough to pay back in some small way Miss Warren for all her kindness and all her goodness to her.” She “did not know what she would do without Miss Warren.” “We are like two sisters in one family.” “She was the best friend that I ever had in the world, that is, next to my father.” “She had been mother, sister and brother” to her. “She was the nearest of kin she had in the world!” "She had been with her since she was a little girl and she had always looked out for her.” She was “more fortunate in having Miss Warren than any one will ever know.” She could “never thank Miss Warren for what she had done for .her.” She was “the only one who was near or dear to her in all the world.” Of these and like expressions the record is full. And against them is to be contrasted the position of this wealthy girl who was, saving for Miss Warren, alone in the world. Alone, not because of any estrangement that had grown up between her and her mother’s relatives, but because those relatives had always been strangers to her. I say this that the facts may be shown as they exist, namely, that this is not the case of an “unnatural will” where dependents and

After the death of her father Miss Dolbeer lived in the paternal home with Miss Warren. For the first year after her father’s death she led a reasonably secluded life, such trips and visits as she made being made quietly and with due regard for the proprieties. From August, 1903, to March, 1904, she entered actively upon the social life of one of her means and freedom from responsibilities. She attended balls, parties, places of amusement, and made many excursions with her friends into the country. She was fond of outdoor sports and amusements, was an accomplished golf-player and a skilled chauffeuse. There was nothing certainly up to this time in all her life to have suggested that in any way or in the slightest degree she was the victim of insanity. In the spring of 1904 she was somewhat run down in physical health, and under her physician’s advice took a period of ten days’ rest, during which time she cut herself off from social functions. She was attended by a trained nurse, and her friends visited her at will. She was wholly freed from the doctor’s care and supervision several days before she executed the will in question. ' She executed this will, as she herself states, in

Where, then, is to be found the evidence that Miss Dolbeer, upon the 23d day of April, 1904, was, within the meaning of the law, insane so as to be incapable of the testamentary act ? It rests upon this: Contestant endeavored to show that Mrs. Dolbeer, mother of Bertha, was insane during the period of gestation of her unborn child and after its birth, and committed suicide by reason of this insanity; that there was insanity in her father’s family (though it is not pretended that her father was insane), and that Bertha Dolbeer herself committed suicide by leaping from a window in the Waldorf-Astoria hotel, and that she so committed suicide because she was insane. But without pausing to analyze the insufficiency of the evidence to establish several of these propositions, but to the contrary conceding that everything which appellant contends for has been shown by this evidence, it proves nothing more at most than that Bertha Dolbeer, in New York, upon the ninth day of July, 1904, committed suicide because of her insanity. The presumption always is that a person is sane. Proof of insanity carries back no presumption of its past existence. It exists only from the time when it is proved to exist, and thus I say that, resolving every disputed point as to the weight of the evidence in contestant’s favor, the utmost which that evidence by any stretch of liberality can be said to establish is that the deceased had a hereditary taint of insanity in her blood which declared itself for the first time upon the day of her death and prompted her to commit suicide. That up to the day of her death she had led the sane, normal life of a girl of her

In making the foregoing statement we have not overlooked the testimony which contestant offered of certain intimate acquaintances of the deceased concerning her unsoundness of mind. The Code of Civil Procedure (sec. 1870) permits in evidence the opinion of an intimate acquaintance respecting the mental sanity of a person, but with that opinion must be given the reasons upon which it is based, and the opinion itself can have no weight other than that which the reasons bring to its support. (Kinne v. Kinne, 9 Conn. 102 , [ 21 Am. Dec. 732 ]; Brashears v. Orme, 93 Ind. 442 , [ 49 Atl. 620 ] ; Prentis v. Bales, 93 Mich 234 , [ 53 N. W. 153 ].) These witnesses were but three in number, and all of them interested witnesses,—Mrs. Moody, the aunt of Miss Dolbeer and one of her next of kin in case of intestacy; Mrs. Moody’s daughter, Mrs. Edna Moody Sherman, whose interest through her mother would be both pecuniary and direct; and Elizabeth C. Phillips, an elderly lady and the cousin of Bertha Dolbeer’s father. Mrs. Phillips had been left a legacy of ten thousand dollars, with the amount of which she was frankly and avowedly dissatisfied. She likewise objected to the fact that in the disposition of her bounty Bertha had remembered certain people, and in particular she resented the circumstance that Mrs. Warren, mother of Miss Warren, received twenty-five thousand dollars by the will, while she herself received only ten thousand dollars. She denies any arrangement between herself and the contestant whereby in the event of the will being declared invalid she was to receive an equal sum or more, but she testifies that she haunted Mr. Gray, one of the executors under the will, “for days and weeks to beg for a compromise that I might not be placed on the stand to state what I have done.” She testifies further that all she had gotten in the world was gone and lost, there was only her husband left, and “all she cared for was money.” She says that she “did not want Mr. Brown to have $10,000 in

Coming to their testimony, Mrs. Phillips says she met Miss Dolbeer on April 25, 1904, and declares: “I don’t think Bertha was of sound mind in April, 1904.” She says “she acted as though she was under a spell, unsettled, as if she had no opinion of her own, as though she did not know what she wanted to do. She looked very poorly and was very thin. She told me she had been subject to fits of depression.” On cross-examination, when pressed for her reasons for her opinion, she says that, in talking of the sudden seizure of her father in New York just before his death, “she showed more excitement and nervousness than she had ever displayed before. She said: ‘I shall never forget it, Auntie, I shall never forget it. His struggle for breath, for life. I will never forget it.’ She clasped her hands together in a distressed manner.” Surely the natural feelings of a daughter over the agonizing scene of her father’s sufferings to which she was a witness will not be held evidence of insanity. It would have been more pertinent to the issue if the girl had not shown distress. The witness proceeds that “she complained of a pain in her head. She had headache, nervous sleeplessness, pain in her eyes.” The pain was “in the back of her head,” and her mother’s pain was in the back of her head. She could not sleep, and her mother was afflicted with insomnia. When Mrs. Phillips tells her that, in her judgment, she is not fit to go away, Bertha responded, “I have to go. I have to go,” and when pressed further on the subject explained that “she had already engaged her steamer apartment.” Her manner was as though she did not care for anything, any pleasure. She said she thought the trip on the water might benefit her, and she might be able to sleep if she was on the water. She told her aunt that “when one is not well life is not worth living. There is no pleasure in life without health,” and her manner during that conversation was depressed. Again, the witness advised her to go to Mrs. Nordingham, the witness’s physician for rheumatism, “and,” proceeds the witness,

Mrs. Sherman did not testify to her opinion of the mental soundness or unsoundness of Miss Dolbeer, nor did she testify to a single irrational act. Her evidence was to the effect that Miss Dolbeer was never very enthusiastic or demonstrative, that on the Sunday before her departure, which was shortly after the making of the will, she was not in very good health, and that she was “more indifferent upon that day than she had ever seen her before.” She did not display any enthusiasm when offered letters of introduction to people “who lived in an out of the way place,” but, to the contrary, she told the witness that she did not expect to do much traveling during her sojourn in Europe, but would remain most of the time in or about Paris. There is no word of this testimony going to the mental unsoundness of the testator, and nothing (having regard to the presumption of sanity) inconsistent with the established fact that at this time Miss Dolbeer’s physical health was not good, and that she was going to Paris for the sea-voyage and for rest and recuperation there. It is not only not surprising but quite natural that her physical ailment should have produced a certain amount of mental depression, and there is much of sound wisdom and nothing of insanity in the girl’s declaration that there is no pleasure in life without health.

Mrs. Moody’s testimony was to the effect that Miss Dolbeer was of somewhat phlegmatic temperament and displayed little enthusiasm over things, was never wasteful, but rather

"Q. How long did this expression of pain seem to last ?

“A. I do not think it was an expression of pain.

“Q. Well, the expression which you have described.

“A. Only a very few seconds. I couldn’t tell. I simply changed the subject.

“Q. Was there any more than the one expression.

“A. No; we talked a little more about her trip. I offered to give her letters of introduction to friends in Paris. She said, ‘Yes, that would be nice.’ Then she started after a while to go home, and I saw her down to the front door. I stayed on the porch, and as she was going I said, ‘When (you get to Paris, write and tell us about the fashions, ’ just for something light to say. She turned around and gave me the most pitiful look I have ever seen on anyone’s face— a haunted look of fear, as though she had something on her mind; she turned her face and looked at me; then she seemed to lose herself and went.on down the stairs.

“1 came in and said to my daughter, ‘I never shall forget Bertha’s look as she was going a/way. I know that her mind was not right. I am perfectly convinced of it.’ ”...

“I offered to give her a little bicarbonate of soda. I thought if it was her stomach it might help a little. She seemed so terrified. When I offered it to her this dreadful look of care was on her face, and she was holding herself in that position, grasping herself in that manner, and said ‘No, no, no.’ I saw that she was terrified at something and I turned the subject of conversation.”

She testifies further that, excepting for this episode during the two hours that Miss Dolbeer was there, the conversation was upon ordinary subjects such as would interest young ladies, “matters of society, what was going on in society.” The opinion of this witness is entirely inadequate, when the reasons for it are considered, to form any foundation for a judgment of insanity against this testatrix. She had neither done nor said any irrational thing. She had shown a lack of interest toward the offer of letters of introduction to people

In the quotation from Mrs. Moody’s testimony above given have been inserted certain words in italics which by order of the court were stricken out. We have considered the evidence as though these words had been admitted. They were properly excluded, however, as a volunteer declaration of the witness of her statement to her daughter.

The only other witnesses to Miss Dolbeer’s mental condition had but a casual acquaintance with her, which acquaintance arose some two months after the making of the will, and while she was returning upon the steamer to New York—the steward and stewardess of the ship. The steward “noticed” that Miss Dolbeer was looking a little sad. There was nothing else peculiar about her, except that she was sometimes sitting as if she was in deep thought, as if she was thinking about something. “I do not think it was anything different than what anybody else would look that was sad or deep in thought upon a thing.” “I did not notice any physical ailment of Miss Dolbeer while she was under my observation, while she was on' board the ship. I did not notice anything peculiar about the eyes of Miss Dolbeer, only what I have told you, the

"Q. How differently did she appear than any lady or many other ladies, to you, who had been passengers on that ship?”

“A. She did not; but you know sometimes a person looks strange to you and you cannot tell what it is. I had never seen her before, and I don’t know what her appearance was before then.”

This, then, constitutes all of the direct testimony of mental unsoundness. If it stood alone it would in no wise suffice to countervail against the presumption of sanity, but taken, as it is to be taken, with all the evidence of the girl’s life and conduct and acts, from her own writings, from her own words, from the lips of dozens of intimate friends, disinterested witnesses and medical experts, it was absolutely insufficient to raise a conflict, it was absolutely insufficient to have justified the submission of the question of her mental competency to a jury.

In addition to this direct testimony, contestant offered three physicians, no one of whom had known Miss Dolbeer in her lifetime, and to whom were given long hypothetical questions

But, aside from all this, two other facts render this testimony of no probative value: The first, that the witnesses testified as to the condition of mind of Miss Dolbeer “at the time of her death, ’ ’ and, as has previously been stated, it may be conceded that her death was self-inflicted and caused by simple melancholia, but this would show no more than that she was insane upon that date, and could not have the effect of proving her insane several months before, when she made her will. Saving in the case of one born a maniac or insane, there must always be a time when a person is rational and of soúnd mind before the dread disease exhibits itself, and if Miss Dolbeer was insane upon the day of her death, the evidence fails to disclose that her mental incompetency to make a will arose before that day. Second, the testimony of the physicians is that the form of insanity from which Miss Dolbeer suffered was “simple melancholia,” and the characteristics of this kind of insanity are explained at length. Some of its pronounced characteristics aré an indifference to life and to worldly interests and affairs. As it develops, delusions will develop, but of a very mild nature; the victim is depressed, the usual outcome is a suicidal tendency, but the intélligenee is either unimpaired or slightly impaired, and one afflicted with simple melancholia would converse apparently rationally, would write apparently intelligently, and would converse with friends or acquaintances so that the affliction would not be noticeable. The main condition is a change in the emotions and disposition. “The desire for life which is natural to most individuals becomes a desire for death. The people that they have loved formerly they grow indifferent to. They often cling to one individual. ’ ’ Assuming that all these attributes and characteristics of simple melancholia were present in Miss Dolbeer at the time that she made her will (though they were not), still there is nothing in this to establish the legal incapacity to dispose of her property. This insanity and these delusions must be shown to have directly affected the testamentary act. But the truth is Miss Dolbeer had not shown any change in disposition other than a change which

For all these reasons, therefore, the testimony of contestant’s medical experts cannot be said to raise even a conflict of the evidence upon the question of the sound and disposing mind of Bertha Dolbeer at the time she executed her will.

The code declares that evidence is deemed satisfactory which ordinarily produces moral certainty or conviction in an unprejudiced mind. “Such evidence alone,” it adds, “will justify a verdict.” (Code Civ. Proc., sec. 1835.) One would indeed be presumptuous to say that the evidence contestant offered was “satisfactory.”

As a result of this survey, the evidence admitted being such as to establish the fact that contestant -wholly failed to make out a case, the rulings of the court are to be considered, in the light of this conclusion, and such rulings only need be considered, therefore, as contestant insists either prevented him from making out a better case, or unjustly, by the admission of improper evidence, assisted the proponents.

It is contended that the court erred in refusing to admit the declarations of Etta Marion Warren, which declarations, it is asserted, would have been favorable to contestant. Upon the admissibility of such evidence there is a contrariety of opinion in the decisions of our sister states. In Estate of Arnold, 147 Cal. 583 , [ 82 Pac. 252 ], the question was before this court, but was not decided, but the great weight of both reason and authority is against the admission of the declaration of one legatee or devisee when mental incapacity is in issue. One of the vital reasons for this is that the interests of legatees and devisees under a will are several and not joint; each claims independently of the other, and it would be unjust under these circumstances to allow the interest of one to be affected by the acts and declarations of another with whom he is not in privity. And for very obvious reasons

The court was correct in excluding the verdict of the coroner’s inquisition upon the body of Mrs. Dolbeer in California, and also that upon the body of Miss Dolbeer in New York, but even had the rulings been error, the result, for reasons already stated, could not have been affected. It has been expressly decided in this state that a verdict of a coroner’s jury is not admissible in such a case as this, (Hollister v. Cordero, 76 Cal. 649 , [ 18 Pac. 855 ]; Rowe v. Such, 134 Cal.

The court sustained an objection to questions asked by contestant of Mrs. Moody. These questions were: “Taking all the facts you have learned in respect to Miss Dolbeer, together with the events of the Sunday just before she went East, and from your knowledge of what you observed of her on that day, your opinion is that on that day she was not of sound mind?” The second question framed along similar lines was: “Now, Mrs. Moody, from what you observed on the Sunday before her departure, and what you had learned, and what you knew of Miss Dolbeer, and what you had observed, her actions and conduct, and language, all taken together, massing all that knowledge in your mind, was she of sound mind the day she visited you?” Both questions are subject to the same objection that they permit the witness to testify upon hearsay information,—“from what she had learned.” There can be no difference in principle between this question and one which calls for the opinion of the witness based upon what he may have heard. And it has been repeatedly held that to allow a witness to testify upon' knowledge or information thus received is error. (People v. Wreden, 59 Cal. 392 ; Xenia Bank v. Stewart, 114 U. S. 224 , [ 5 Sup. Ct. 845 ]; Flanagan v. State, 106 Ga. 109 , [ 32 S. E. 80 ]; Kehrig v. Peters, 41 Mich. 475 , [ 2 N. W. 801 ].)

Evidence was offered and admitted over objection showing that John Dolbeer, father of Bertha, not only never showed any trace of insanity in his lifetime, but was a man of somewhat exceptional mental vigor and business capacity, who by

Dr. Hertzstein, a skilled medical man, had met Miss Dolbeer in Paris upon her last visit there. He had met her socially at a dinner party. He qualified as an expert, hi's experience covering all classes of diseases, mental and physical, requiring medicinal or surgical aid. He was asked the opinion whether, upon the occasion when he met Miss Dolbeer, she was of sound mind, and answered, over objection, that she was. A general practitioner who has had experience in the various kinds of mental afflictions is as competent to testify to the sanity or insanity of a person as the skilled expert who devotes his entire time to the study of such diseases. (Wigmore on Evidence, secs. 569, 687; Estate of Toomes, 54 Cal. 515 , [ 35 Am. Rep. 83 ] ; Davis v. State, 35 Ind. 497 , [ 9 Am. Rep. 760 ] ; Phelps v. Commonwealth, 17 Ky. Law Rep. 706 , [ 32 S. W. 470 ]; Abbott v. Commonwealth, 107 Ky. 624 , [ 55 S. W. 196 ], Without multiplying authorities upon this proposition, it is sufficient to refer to the Encyclopedia of Law (2d ed., vol. 12, p. 452), which shows this to be the rule not only in the courts of the United States, but in twenty and more state courts whose cases are there cited. •

Hypothetical questions involving facts not testified to by the witnesses themselves were put by contestant to certain non-expert witnesses, familiar friends of the deceased, and by. the court were ruled out. These rulings were proper. No case has been cited which allows such a line of inquiry, even upon cross-examination, and as to the impropriety of such questions reference may be made to Rambler v. Tryon, 5 Serg. & R. 90 , [ 10 Am. Dec. 444 ]; Hogmire’s Appeal, 108

It is not perceived that the contestant suffered in any of his rights by the alleged'improper limitation upon the cross-examination of certain of proponent’s witnesses. To the contrary, it affirmatively appears that every reasonable latitude, and in some instances even a most liberal latitude, was allowed in this regard.

The exclusion of the deposition of Theodore Rumney under proponents’ objection was not error, and from no point of view, if error, could the ruling have been injurious to contestant. Mr. Rumney was a New York banker. In his deposition he testified that Miss Dolbeer and Miss "Warren called at his office on July 9, 1904, the day of Miss Dolbeer’s death; that she drew some money on a letter of credit which she had with her and handed the money to Miss Warren. Mr. Rumney testified repeatedly that on that occasion Miss Dolbeer’s appearance was rational and that she acted in a rational manner, and that “it never entered his head to think she was other' than rational.” On cross-examination, when asked whether at any subsequent time he had any suspicion of the fact that Miss Dolbeer was irrational, he answered : “Not that she was irrational, that did not. . . . She was rational, but after I had read the evening paper [containing an account of her death], it seemed to me in thinking it over that she was in a tense mood, never irrational. ’ ’

The court did not err in receiving in evidence the deposition of Fred A. Greenwood. The appellant’s objection to this was that the deposition was taken on November 11, 1904, during the trial which commenced on November 2, 1904. It was read in evidence on December 7th and 8th, on proof that the witness had left the state two days before,—namely on December 5, 1904,—and was then absent. The proposition urged by counsel is that the proponents should have called the witness because he was in the state during the progress of the trial. The sections of the code covering the subject are as follows :■—

“The testimony of a witness in this state may be taken by

a deposition. ... (3) When the witness is about to leave the county where the case is to be tried and will probably continue absent when the testimony is required.” (Code Civ. Proe., sec. 2021.)

“ ... If the deposition be taken under subdivisions 2, 3, and 4, of sections 2021, proof must be made at the trial that the witness continues absent or infirm, or is dead.” (Code Civ. Proe., sec. 2032.)

This section contemplates that a deposition may be taken when it is believed that the witness will be absent not during any part of the trial, but when his testimony is “required,” and the only additional requirement of the code is that the witness shall be absent when the deposition is used. It was not even shown that proponents had knowledge that deponent Greenwood was in the county during the progress of the trial, and, as said in Abless v. Miller, 12 Tex. 111 , [ 62 Am. Dec. 520 ], if the deposition is legally taken it is admissible, and “it would be unreasonable to require a party to keep an eye on the witness after his testimony had been taken and to make it his duty to put the witness under subpoena should he move into the county.”

Nor was it error for the court to admit in evidence the deposition of Miss Ethel Postley. This deposition was taken in New York on the twenty-eighth day of October under the provisions of section 2024 of the Code of Civil Procedure. To permit its introduction in evidence no preliminary proof was required to be made under the provisions of section 2032 of the Code of Civil Procedure, since that section applies only to depositions taken in the state. To take a deposition under section 2024 it is not necessary that the witness be a nonresident. The question of the witness’s residence is not involved. All that is required is that the witness be out of the state. It was therefore not incumbent upon the proponents to show her continued absence at the time her deposition was offered. The presumption existed that the witness having been shown to have been absent, that her absence continued, and it was upon the party objecting to prove the contrary. (Randolph v. Woodstock, 35 Vt. 291 ; Hennessy v. Niagara Fire Ins. Co., 8 Wash. 91 , [ 40 Am. St. Rep. 892 , 35 Pac. 585 ] ; Gaul v. Wenger, 19 Mo. 541 ; Brower v. Beckwith, 35 Miss. 467 .) This proof was not made by the contestant. The only

The deposition of Miss Warren had been taken by the contestants, and she had been examined at great length and with much particularity. She was under subpoena by contestant throughout the trial of the cause. Contestant did not call her to the witness-stand, nor did proponents. At the conclusion of the taking of proponents’ evidence contestant sought to have the court open the case for the taking of Miss Warren’s testimony, upon the ground of surprise, their expectation being that proponents would call her as a witness, and failing in this they sought to have her deposition admitted as rebuttal evidence. His motions addressed to these ends were denied by the court, and there was no error in these rulings. The sole issue in the case was the mental ineompetency of the deceased. Upon this contestant had the burden and was required first to introduce his evidence. What Miss Warren would testify to was known to him from the deposition which he had taken, and she was present in the courtroom in obedience to his subpoena. If he failed to present the testimony of a witness, which testimony would have been valuable to this cause, under these circumstances, the responsibility for this failure must rest with him, for it cannot be said that there was any abuse of the discretion of the court in refusing to allow the case to be reopened for this purpose. As to the proffer of the deposition by way of rebuttal testimony, it was properly excluded as being in no sense rebuttal.

Exception is taken to the rulings of the court in giving and refusing to give instructions. It may be said that generally the complaint is not that the instructions actually given were erroneous, but that the instructions proposed by the contestant, being unimpeachable in point of law, should have been given. In some instances there is merit in this contention of appellant. This is true of the proposed instruction as follows: “The jury are instructed that the fact that the testatrix committed suicide, if the jury shall find that she did commit suicide, is not of itself sufficient evidence of unsoundness of mind; but this is proper to be considered upon the question

The court, at the request of the proponents, instructed the jury as follows: “A hypothetical question is a question which assumes a certain condition of things to be true, a certain number of facts proved or to be proved, and calls upon the witness to assume all the material facts stated to be true and express his opinion as to a certain condition. The witness to whom the hypothetical question is addressed assumes them to be true, and bases his answer upon the assumed case. The opinion of the witness must, therefore, be brought to the test of the facts in order that you may judge what weight the opinion is entitled to.” Appellant concedes that this instruction “may be true as an abstract proposition of law,” but insists that its tendency was to discredit the testimony of the expert physicians whom he had called. This objection is untenable, and the reasons which have been given answer contestant’s exception to the court’s refusal to give certain instructions proposed by him upon the subject of expert testimony.

Contestant’s instructions which embodied his “theory of the case” were properly refused. The same objection obtains to these instructions that obtains to the hypothetical ques

No other matters seem to call for particular consideration, though it may be added that, upon a review of all the instructions, the conclusion is irresistible that the jury was fairly and impartially advised.

Application for a writ of supersedeas pending the decision of this cause has been asked for. This decision renders more formal consideration of that application unnecessary. It is denied. °

Appellant having died since the submission of this cause, it is ordered that the judgment and order appealed from be affirmed nunc pro tunc as of date of submission.

Lorigan, J., and McFarland, J., concurred.

Hearing in Bank denied.