We are not prepared to say that the objecting counsel or the court stated in every instance the correct reasons for exclusion. But it is immaterial how that is. A correct ruling, though put on a wrong ground, will Lay witnesses, to say nothing of others, cannot give an opinion that one has or has not testamentary capacity, or capacity to contract, or capacity to commit crime, or capacity to care for property, or for particular property. They may state what they be sustained. Fairbanks v. Stowe, 83 Vt. know of one in their own way, and may add 155, 74 Atl. 1006; Town of Roxbury v. C. their opinion of that one's mental capacity, basing their opinion upon what they have narrated to the jury; but they may not give an opinion which involves the statement of a rule of law whether that rule relates to crimes, wills, contracts, or any other matter. The rule was well stated by Judge Aldis in Fairchild v. Bascomb, 35 Vt. 398, where he says: "What is sufficient capacity to transact business, or to make a will, is a matter of law, depending somewhat upon the nature of the business. A witness may not correctly apprehend the rule of law, and if he uses such expressions may be misled himself, or may mislead the jury. Hence the question should be framed so as to require him to state the measure of the testator's capacity in his own language and by such ordinary terms or forms of expression as will best convey his own ideas of the matter." Prof. Wigmore quotes the rule as stated by Judge Aldis and recognizes its soundness, urging only that it should not be so applied as to work a reversal because of an inapt choice of words. 3 Wigmore, Ev. § 1958. The rule is well stated in Foster's Ex'rs v. Dickerson, 64 Vt. 233, 244, 24 Atl. 253, is reaffirmed in McCabe's Will, 70 Vt. 155, 40 Atl. 52, and again in Sargent v. Burton, 74 Vt. 24, 52 Atl. 72. In the latter case, which involved the question of a grantor's mental capacity to execute a deed, a witness who gave otherwise admissible testimony added that he should say that the testator "was competent to make the writings." This last statement was not held to be proper testimony, but it was held that it did not vitiate the decree in the case: Because, in the first place, it was not responsive to the question which was proper; in the second place, because it was not objected to before the master; and, in the third place, because it was to be presumed that the master disregarded the objectionable part of the answer. Nothing better shows the inadmissibility of the testimony than the opinion in this case whereby it was shown that its inadmissibility did not work a reversal. The point is made by counsel for the defendant that none of the questions were accompanied by an offer of what the plaintiff expected to prove, and that therefore there was no error. But the purpose of the questions and the nature of the expected answers were so evident that specific offers were not needed, and the rule in that regard does not apply. Tarbell & Whitham v. Gifford, 82 Vt. 222, 226, 72 Atl. 921. V. R. Co., 60 Vt. 121, 14 Atl. 92. One exception was taken which has not been here considered, for in argument it was waived. Judgment affirmed. Evidence held to support finding that a deed by a grantor to his niece, executed shortly before his death, was not procured by fraud or undue influence of the niece. [Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 642-645; Dec. Dig. § 211.*] 2. WITNESSES (§§ 178, 181*)-INCOMPETENCYWAIVER. An administrator suing in his representative capacity may waive the disqualification of the adverse party as a witness to testify to transactions with decedent, either by calling the adverse party or permitting him to testify without objection. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 722-728; Dec. Dig. §§ 178, 181.*) 3. APPEAL AND ERROR (§ 1009*) -FINDINGSCONCLUSIVENESS. In the absence of any reason to suppose that the testimony of the successful party and the circumstances of the case were not carefully scrutinized and all presumptions and inferences weighed by the chancellor, the finding of the chancellor must stand. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3970-3978; Dec. Dig. § 1009.*] 4. DEEDS (§ 68*) - CAPACITY OF GRANTOR DEAF-MUTES. A deaf-mute may possess sufficient capacity to execute a deed. [Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 149-155; Dec. Dig. § 68.*] Appeal in Chancery, Franklin County; Fred M. Butler, Chancellor. Suit by Homer Brooks, administrator of Albert A. Greene, deceased, against Cora B. Mason and another. From a decree dismissing the bill, the orator appeals. Affirmed, and cause remanded. Argued before ROWELL, C. J., and MUN-SON, WATSON, HASELTON, and POWERS, JJ. N. N. Post and Elmer E. Johnson, for appellant. C. G. Austin & Sons, for appellees. HASELTON, J. This is a bill in equity brought by the orator as administrator of the estate of Albert A. Greene. The bill seeks, on the ground of fraud and undue influence, to set aside a deed purporting to convey real and personal property to the from home, but that evening the doctor no defendant Cora B. Mason. The deed was executed a few hours before the death of the plaintiff's intestate. The defendant Cora B. is the niece of the intestate, who was about 63 years of age and unmarried, and the defendant F. W. Mason is the husband of Cora B. The facts in the case were found by the chancellor, and the case is before us on an appeal by the orator from a decree dismissing the bill. The intestate was a deaf-mute of some education, capable of communications in writing, residing at St. Albans Bay; and the property in question was a small homestead worth about $800, personal property valued at $75, and the sum of $42.86 in money. The intestate had a sister living in Keene, N. H., and several nephews and nieces besides the niece Cora B. She lived only about a quarter of a mile from the intestate. She was familiar with the alphabet of the deaf and dumb, having been taught it by the intestate in her childhood. She could communicate readily with him by the use of that alphabet and, so far as the case shows, was the only person in the vicinity of his home who could do so. She and intestate had always been on friendly terms. She visited him, sent him food and delicacies, had him at her house at Thanksgiving dinners and Christmas dinners, sometimes mended his clothing, and on two occasions when he was sick, many years before his last sickness, attended him. The intestate frequently gave her fruit and berries from his garden. Her husband, Dr. Mason was well acquainted with the intestate, but was unable to communicate with him in the language of the deaf and dumb, and they were not particularly intimate. Something like a year before the death of the intestate he was feeling ill, but refused to go to Dr. Mason, and instead consulted with another physician and took the medicine of the other doctor. The orator undertook to show an estrangement of feeling between the intestate, on the one hand, and his niece, Cora, and her husband, Dr. Mason, on the other. But the chancellor finds that there was no such estrangement. tified her of the illness of her uncle, and the next day she and her husband visited the uncle and persuaded him to go to their house, where he could be better cared for than at his own home. He then went to the defendant's house, where he was given a comfortable room, but where he died after about two days. The day before he died the intestate by means of the deaf and dumb alphabet communicated to his niece Cora that he wished to see a lawyer about his property, and that he had no preference as to what lawyer should be called. Thereupon the niece notified her husband of the wishes of her uncle, and Chauncey G. Austin, Esq., was telephoned to. He arrived about 8 o'clock in the evening. He communicated with the intestate through the niece as an interpreter and was so told by the intestate that he wanted to convey what property he had to his niece for his care and support and the payment of his debts and a proper Christian burial, but that he wanted to reserve to himself the income from his property so long as he might desire. Mr. Austin prepared a deed in accordance with the wishes of the intestate so expressed, and after writing it out showed it to the intestate, who appeared able to read, and who, after looking at it for some moments, signed it using a book for a rest. Mr. Austin signed as a witness, and a neighbor was called in, who also signed as a witness when upon holding the paper up to the intestate and pointing to the signature he received an affirmative nod. The acknowledgment was signed after the intestate had apparently looked it over, had nodded his head in approval, and waved his hand toward his niece. The chancellor finds that the attorney exercised great care in ascertaining whether the intestate fully understood the transaction and further finds that he did, in fact, fully understand and comprehend it. At this time his mental condition appeared to be normal; but his disease, pleuropneumonia, was rapidly progressing. However, soon after the exeution of the instrument, the intestate got out of bed without assistance. An hour or so later, about 10 o'clock in the evening, Le got out of bed and sat in a chair while his bed was fixed up. There was no marked change in his condition until about 6 o'clock in the morning, a few minutes before he died. The defendants cared for the intestate at the time of his death, gave him a proper Fred Greene, a nephew of the intestate and a brother of the defendant Cora also lived, with his family, in the immediate neighborhood of his uncle the intestate. This nephew and his wife were on friendly terms with the intestate, he occasionally visited them, frequently brought their mail to them from the post office, and Fred's wife frequently burial, paid the funeral expenses, and erectmended the clothes of the intestate and oth-ed a suitable tombstone at his grave. They erwise ministered to his wants. It did not also paid his indebtedness, which, however, appear that either the nephew Fred or Fred's wife could use the deaf and dumb alphabet. One day the defendant Dr. Mason learned that the intestate was ill. Thereupon the doctor called upon the intestate, found that he was seriously ill, and ascertained by signs and motions made that the intestate desired to see his niece Cora. Cora was then away was small. The defendants both testified, without objection, and some of the material facts are found on their testimony, and, giving consideration to their testimony, the chancellor finds that there was no fraud or undue influence in the transaction unless the facts in respect to the situation in themselves constitute fraud and undue influence. However, the chancellor reports in effect that he makes a contrary finding if a presumption of undue influence and a duty on his part to exclude the general testimony of the defendants concurred. But they did not con cur, for the representative of a deceased party may waive the disqualification of the statute either by himself calling the disqualified witness or by permitting him to testify without objection. Comstock's Adm'r v. Jacobs, 84 Vt. -, 78 Atl. 1017; Dee v. King, 77 Vt. 230, 59 Atl. 839, 68 L. R. A. 860; Ainsworth v. Stone, 73 Vt. 101, 50 Atl. 805; Paine v. McDowell, 71 Vt. 28, 41 Atl. 1042; State v. Slack, 69 Vt. 486, 38 Atl. 311; Linsley v. Lovely, 26 Vt. 123, 133. Some stress is laid upon the facts that at the time of the transaction the defendant, so far as the evidence goes, did not realize that his illness would result fatally, while the defendants were morally certain that he could not recover and did not tell him so. The conduct of the plaintiff's intestate rather indicates that he was acting in contemplation of either life or death, and we do not think the defendants were, as matter of law, guilty of fraud, in leaving the intestate to indulge whatever hope he might have had of recovery. There is no reason to suppose that the testimony of the defendants and all the circumstances were not carefully scrutinized, and all presumptions and inferences duly weighed by the chancellor, and his finding of the absence of fraud and undue influence stands. Hobart's Adm'r v. Vail, 80 Vt. 152, 66 Atl. 820; In re White's Will, 78 Vt. 479, 63 Atl. 878; Morgan v. Morgan, 82 Vt. 243, 73 Atl. 24. Formerly deaf-mutes were taken to be idiots. 1 Hale's P. C. 34. But the education and the better discernment of later times have shown the fallacy of the ancient theory in this regard. Earl of Jersey v. Lady Mary the devisee had made an overpayment of a specified sum which the executor held. The executor and devisee were children of testator and the executor erroneously, but in good faith, informed the devisee that the will required her to pay a part of the debts and legacies. Held, that the statement in the account was not an acknowledgment by the executor of an existing indebtedness to the devisee from the advancement sufficient to remove the bar of limitations. [Ed. Note.-For other cases, see Limitation of Actions, Dec. Dig. § 145.*] 3. LIMITATION OF ACTIONS (§ 192*)-PLEADINGS-AVOIDING DEFENSE. Under Gen. St. 1902, § 610, authorizing plaintiff to reply to the answer and providing that, under a general denial to the answer, plaintiff may not give in evidence any matter in avoidance, a plaintiff relying on an acknowledgment removing the bar of limitations pleaded in the answer must in his reply plead the acknowledgment. [Ed. Note. For other cases, see Limitation of on Actions, Cent. Dig. §§ 699-702; Dec. Dig. § 192.*] Appeal from Court of Common Pleas, Hartford County; John Coats, Judge. Action for money had and received, and for the use and occupation of land, by Eliza Radigan against Philip F. Hughes. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions. Stewart N. Dunning, for appellant. Sidney E. Clarke, for appellee. HALL, C. J. The bills of particulars filed under the complaint dated March 9, 1909, are as follows: Under first count: "Jan. 5, 1900. Το money had and received from the plaintiff for the settlement of the estate of Thomas Hughes, account rendered by defendant, December 18, 1907, $44.14. To interest for 9 years 4 mos., $24.71. On December 18, 1907. the sum of seventy dollars was found to be due to the plaintiff from the defendant on an account then and there stated." O'Brien, Barnes' Notes of Cases, 168; Far- Under second count: "To use and occupaevidently based upon the court's conclusion | must, in order to remove the bar of the stat mer v. Farmer, 1 H. L. Cases, 724; Quinn v. Halbert, 55 Vt. 224, 228. The obsolete doctrine is not invoked by counsel. Decree affirmed, and cause remanded. tion of land of the defendant from January 1, 1900, to date, $400.00." The first defense of the answer denies the allegations of both counts, and the second alleges that the right of action stated in the first count, and a certain part of that described in the second count, did not accrue within six years before the commencement of this action. The reply denies the allegation of the second defense. In his memorandum of decision the trial judge says that "the account rendered in the court of probate is sufficient to take the claim for $44.17, overpayment, out of the statute of limitations" and that the defendant is not liable in this action for the claim described in the second count. The judgment file states that the court found the issues for the plaintiff and that it is adjudged that the plaintiff recover seventy-one dollars and thirty-one cents and costs. This judgment is as indicated by the memorandum of decision, that the facts found show that in January, 1900, the plaintiff made an overpayment to the defendant of $44.17, which she was entitled to recover back, as money had and received, and that by the language of his final account as executor, filed in the court of probate February 8, 1908, the defendant acknowledged his indebtedness to the plaintiff in that sum. This decision is the only ground of appeal. The final account which is held to be such an acknowledgment is as follows: ute of limitations, contain such an acknowledgment of the debt as will justify the inference of a promise to pay it. Norton v. Shepard, 48 Conn. 141, 40 Am. Rep. 157; Blakeman v. Fonda, 41 Conn. 561. An unequivocal acknowledgment of an existing indebtedness is sufficient for that purpose, since from such acknowledgment the law implies a promise to pay it. Sears v. Howe, 80 Conn. 414, 417, 68 Atl. 983; Norton v. Shepard, supra. Blakeman v. Fonda, supra. To determine whether the items of the асcount contain such an unequivocal acknowl Account of Philip F. Hughes, as Executor of Win edgment of an existing indebtedness, they and Estate of Thomas Hughes, Deceased. Dr. Cow, pig, etc., not inventoried (by order of Rental of real estate (by order of court)...... Amount advanced by executor to pay bills by order of court...... 50 100 201 70 should be read, not only in connection with all the items of the account of which they are a part, but also in the light of the facts and circumstances under which they were made, and which appear in the finding. As throwing light upon these items of the account which are claimed to constitute an unequivocal acknowledgment by the defendant $531 70 of an existing indebtedness to the plaintiff, the following facts which appear upon the record are pertinent: The plaintiff and defendant are children of Thomas Hughes, who died in 1899, leaving a will of which he appointed the defendant the executor, and by which he gave to his widow, Sarah Hughes, the life use of his real and personal property, to two grandchildren $100 each, and to each of his four children a described portion of a certain tract of land, subject to said life estate, and upon the "condition precedent" that each of said children should within six months after the testator's death pay to the $531 70 executor one-fourth of the sum of $350, to be applied in the payment of said legacies to the two grandsons, and to the payment of an existing mortgage of $150 upon said tract of $350 00 land so divided among the four children. As a reason for imposing said conditions, the testator stated in his will that he had no money in his own name, and that it was uncertain whether he would have any during his life. When the defendant proceeded to settle his father's estate, he found, as his ac $350 00 Philip F. Hughes. Hartford, Feb. 8, 1908. $87 50 count shows, that in addition to the two leg. acies to the grandchildren amounting to $200, and the mortgage of $150, both of which, by the terms of the will, were to be paid by 262 50 equal contributions by the four children, there were bills to the amount of $281.70 to be paid. The first credit item of the account of $250 shows that the household furniture, valued at $150, and the personal property valued at $100 ("not inventoried by order of court"), were distributed to the widow. This left in the hands of the executor the personal property named in the second and fourth debit items valued at $80, which deducted from the amount of the bills, $281.70, left an excess of debts over personalty to the amount of $201.70. To procure the necessary funds to pay these debts the executor, as the finding Stewart N. Dunning, Justice of the Peace. Accepted Mch. 10th, 1908. These items of the account, it is claimed, show an acknowledgment by the defendant of his indebtedness to the plaintiff. "Cr. Amount advanced by Eliza Radigan, $131.67. Amount found by court overpaid and held by administrator, $44.17. Net advanced by Eliza Radigan towards bequest and mortgage, $87.50." As these items contain no express states, added to the $350, which the will exdevisees, the debts above described, and as-relates entirely to the payment of the lega signed to the plaintiff one-quarter of said increased sum "as the amount necessary for her to pay, to fulfill the condition in said will to her receiving the building lot devised therein to her." He explained to the plaintiff "how he arrived at said sum, and exhibited to her the bills for the debts and charg. es." He believed that by the will the plaintiff was required to pay such one-fourth part of the debts as well as a fourth part of the legacies and mortgage. Relying upon the statement of the defendant, the plaintiff paid to him the $131.67. The defendant thereupon paid the legacies and the mortgage, and also the debts, as appears by the fifth and by the last items of the account. It does not appear that the plaintiff ever requested the repayment of any part of said sum of $131.67 until this suit was brought some nine years later. Read in the light of these facts, can the items of the account in question properly be regarded as an unequivocal acknowledgment by the defendant of his individual indebtedness to the plaintiff? First it is to be noted that this is an account which the law requires the executor to file in the court of probate. It is supposed to contain an account of the manner in which, as executor, he has settled the estate of his testator, and not a history of his personal transactions with others. But, waiving the question of whether a statement by an executor in such an account can ever properly be regarded as a promise or acknowledgment by him in his individual capacity, made to his personal creditor, we next observe that the item of the account which is claimed to be an acknowledgment by the defendant of his indebtedness to the plaintiff is a statement, not that the defendant admits, but that the court of probate has "found," that the plaintiff overpaid $44.77, and that the administrator "held" that sum. Neither the fact that the court of probate "found" nor that the defendant's account states that the court of probate "found" that there was an overpayment to the plaintiff, amounts to an unequivocal acknowledgment by the defendant that there was such an overpayment in fact, or that there was an existing indebtedness from the defendant to the plaintiff on account of such overpayment. But even treating the items in question as a statement by the defendant of the fact that there was the overpayment, which the probate court seems to have found was made by the plaintiff and retained by the defendant, such statement does not amount to an unequivocal acknowledgment by the defendant of an existing indebtedness to the plaintiff. The account is made up of two parts, and cies and mortgage. It charges the defendant with the two items, Relihan children bequest, $200, Newton Osborne mortgage, $150-$350. It then in effect says that in the payment of the sum of $131.67, which the account shows was advanced by the plaintiff to the defendant, there was an overpayment by $44.17 of that part of the legacies and mortgage which she was required to pay, namely, one-fourth of the $350, and that, therefore, of the $131.67 the defendant was only entitled to a credit as against the charges of the legacies and mortgage of $87.50. While this is all true, it is not an admission by the defendant that the plaintiff was not required to pay her portion of the debts of the estate, or that he was not entitled to apply the $44.17 in payment of her share of the $201.70 debts. This part of the account containing the statement of an overpayment had no reference whatever to the debts of the estate, or who should pay them, or whether or not the defendant might apply the $44.17 as the part of the debts to be paid by the plaintiff. Clearly the statement in the account that there was an overpayment cannot be interpreted as a statement that there was an overpayment by the plaintiff of her part of the debts. So far as the account contains a statement that there was an overpayment, it is nothing more than a statement that there was an overpayment by the plaintiff of her share of the legacies and mortgage. But it is an unquestioned fact that the $44.17 was neither paid by the plaintiff nor received or applied by the defendant as a payment of the legacies and mortgage. The facts found show that it was explained to the plaintiff that in paying to the defendant the $131.67 she was paying him $87.50 as her one-fourth part of the $350, the amount of the legacies and mortgage, and paying him the remainder of the $131.17, namely, $44.17, which was a little less than one-fourth of the excess of the debts over the personalty, as her part of the debts, and the finding shows that this excess of debts of $201.70 has been paid by the defendant. Unless the probate account contains a clear admission by the defendant that the plaintiff ought not to have paid any part of the debts, or ought not to have paid such part as she did pay, it contains no such acknowledgment as is required to remove the bar of the statute. We find no such admission in the account. It is true that the defendant in good faith informed his sister, the plaintiff, that the will required her to pay one-fourth of the debts as well as one-fourth of the amount of the legacies and mortgages. In this he was mistaken. None of the devises were conditioned upon the devisees paying a part of the contains two sets of debits and credits. The debts. But, apart from the provisions of the first part contains charges to the amount of $531.70 and credits to the same amount, and shows that the executor advanced the sum of will, was it not the duty of the plaintiff as one of the four devisees to contribute, directly or indirectly, to the payment of the debts? |