Pillow v. Shields

46 App. D.C. 487, 1917 U.S. App. LEXIS 2572

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 2, 1917
• Docket: No. 3043
• Status: Published

Opinion

Mr. Justice Hitz,

of the Supreme Court of the District of Columbia, who sat with the Court in the hearing and determination of the appeal in the place of Mr. Chief Justice Shepard, delivered the opinion of the Court;:

The record presents eighteen assignments of error, seventeen of which raise questions of evidence, while the eighteenth is based upon the refusal of the trial court to grant three certain prayers offered by the caveatee.

Errors assigned upon these rejected prayers were not pressed upon the argument, probably because the subject-matter thereof was substantially covered by the oral charge of the trial court, which was as favorable to the caveatee as the law and the evidence justified, and to which charge no exception was taken by either side.

The first question of evidence presented for the attention of this court was based on the following interrogatory asked the caveator by her attorney:

Mrs. Shields, from your first knowledge of your mother, what were her religious affiliations ?

Answer. She was a Roman Catholic.

This question was followed by asking the caveator whether or not there was any noticeable incident, in connection with the decedent’s devotion upon her deathbed, to which caveator replied that she had asked caveatee’s permission to send for a Roman Catholic priest to administer to their mother, which caveatee refused to permit.

Objections to these questions were duly made wdien they were first asked, and the answers appear to have been taken over the exception of counsel for the caveatee, but it is clear upon the record that in the discussion of this matter that ensued the caveatee withdrew his objection to these questions, and that he preferred to take his chance with the jury as then sitting rather than to move the withdrawal of a juror.

Counsel, having withdrawn his objection in the trial court, cannot be heard to urge it here, and no reversible error can be predicated upon the admission of this testimony.

The foregoing and other evidence relating to the religions .affiliations of the decedent was offered by the caveator partly for the purpose of showing that the decedent had changed her religion some three years before making the will in question by leaving the Roman Catholic Church to join a Protestant church attended by caveatee, and to rebut whatever inference of a dominating'influence might be drawn from such testimony, caveatee offered to testify that he had heard it stated in family discussions that his mother, the decedent, had not always been a Roman Catholic, but had been converted to that faith in early life, which testimony ivas refused by the court as hearsay, and as being too remote from the issue both in time and in causation, in which ruling we find no error.

Tlie next assignment of error relied on by the appellant concerns certain rulings of the trial court in admitting and rejecting certain letters alleged to have been written by the decedent.

The first of these letters is dated in 1903, and relates to a transaction in which the decedent, the caveator, and both caveat ees took part.

'This letter [to the cavcatee] is in the writing of the decedent, with a postscript in the writing of Miss Pillow, one of the beneficial eaveatees, and is as follows:

My Dear Child: I write to ask you to do me a favor, and that is not to draw your money out of the bank to-day, but let it remain in bank for thirty days. 1 have made arrangements for your mortgage with Building & Loan. I will pay interest and cost of getting the $500 extra. I fear I will be pressed by Duckett & Dent on the first of March. Mr. Wells has $700, but I need $1,100.50 to take up the mortgage. I am going to try and get the eleven hundred and fifty without calling upon you, and if I do, you can at any time pay the $500 to the Building & Loan. You will lose nothing by this delay as I will pay interest and cost of getting and it will be a great relief to my mind. Under no circumstances would I accept a loan from you without doubly securing you. I will if I have to get any money from you give you my diamond rings with mortgage on land. Please, my dear child, don’t refuse me this favor. I fear everything from Duckett & Dent and I wish to feel I am not in their power. I may never use your money, but if you will leave it in bank for thirty days I wfill never forget the kindness and will return it tw'ofold. Don’t refuse me this favor. I believe I will die if you do not stand by me as I have requested. I feel you will do as 1 request, and I thank and bless you for it.

Your devoted mother,

Mary E. Pillow.

P. S. You need not loan the money on mamma’s property if you think it not wise. The paying the interest by us is intended as no.

This letter was written five years before the will in question, and was objected to on the ground that the line of inquiry was too remote from the issue in the case and not pertinent thereto. But it is well settled that remoteness is to be measured in terms of causation and relation to the issue, rather than in terms of time. Throckmorton v. Holt, 180 U. S. 552, 45 L. ed. 668, 21 Sup. Ct. Rep. 474; Olmstead v. Webb, 5 App. D. C. 49.

While the pertinency of this letter to the issue is apparent from the fact that -it relates to a transaction concerning which all parties to the cause later testified at length without objection.

No ruling of the trial court admitting this letter can be regarded as reversible error here in view of the later testimony from the caveator and-both the caveatees, who, without objection or exception, .testified at length concerning every material statement contained in said letter; who fully developed the transaction referred to therein; and the participation of the decedent and all parties litigant in said transaction.

The letters [to the caveator] of February 14th and February 22, 1908, offered by the caveator-in rebuttal, were properly received as part of the res gestee in the posture which the case bad at that time assumed.

The caveatee, in explanation and defense of the will, bad testified that the decedent went to Benton, Louisiana, for several weeks in February, 1908, in connection with the settlement of the estate of a relative who bad died there intestate.. That decedent perceived the difficulties that bad there arisen because of intestacy, and of her own motion wrote out a will, or a draft of a will, and sent it to the caveatee in Washington, requesting that be have it put into legal form for her execution upon her return home. That this draft, or so-called holographic will, was dated at Benton, Louisiana, February 24, 1908, and was inclosed with a letter of the same date to the caveatee, which letter be did not produce at the trial. The paper writing executed by the decedent in Washington, and here in controversy, is dated March 9, 1908, and the aforesaid holographic will dated at Benton, February .24, 1908, was, offered in evidence by the caveatee and admitted as part of the res gestee. In this state of the case we regard the two letters written at Benton, dated February 14th and February 22, 1908, as proper evidence in rebuttal as part of the res gestae, and also as tending to negative the eaveatee’s explanation of the will which he had testified that he had derived from decedent’s two letters to him written from the same place, at almost the same time, and neither of which he produced at the trial. Throckmorton v. Holt, supra; Dawson v. Waggaman, 23 App. D. C. 428.

The letter of November 19, 1907, alleged to have been Written by the decedent in Washington to her sister in Louisiana, and the so-called certificate or letter dated May 24, 1909, alleged to have been marked by the decedent as “'not to be opened until after death” were clearly inadmissible and properly rejected under the doctrine of the Holt Case, supra.

None of the various other questions raised by the record has escaped attention, but we are of opinion, that the decree of the 1 rial court is just and right, and that it should be affirmed, with costs. And it is so ordered. A firmed.