engendered, it may be, throughout a lifetime, | matters, and gave an apparently full acdemands solution through an investigation befittingly untrammeled, and the inquiries must, for the most part, be carried on in accordance with liberal rules of procedure.

[Ed. Note.-For other cases, see Wills, Dec. Dig. § 320.*]

count of what occurred on the occasion in question. Without objection she gave an opinion, based on what she had testified to, that on that occasion Mrs. Esterbrook was of sound mind. Under objection and excep

Exceptions from Windham County Court;tion she stated that she did not notice any

F. M. Butler, Judge.

thing peculiar in the talk or actions of the testatrix. This testimony, like that of Lilly Vinton, was, however, admissible. The official transcript is referred to for what it shows in respect to the testimony of the two witnesses, already referred to, and we

Probate appeal, in the matter of Nancy Esterbrook's estate, by Rollin S. Childs, administrator, and others, contestants; W. A. Shumway, special administrator, being the other party. On appeal there was verdict and judgment for proponents, and contest-have considered that in connection with the ants bring exceptions. Affirmed.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POW. ERS, JJ.

R. C. Bacon and H. C. Barber, for proponents. Gibson & Waterman, A. E. Cudworth, and A. P. Carpenter, for contestants.

recitals in the bill of exceptions.

William H. Vinton, a witness for the proponents, testified to two interviews with Mrs. Esterbrook and that in the second interview she expressed a wish that he should settle her late husband's estate. The witness testified that he told her that he could not. Under objection and exception he further testified that he told her something about who to get to settle it; that she asked him who he thought would be a good person for that business; that he told her he hardly knew; that if she wished he would speak to Mr. Brackett; that as a result of the interview he communicated with Mr. Brackett about going up to Mrs. Esterbrook's. It ap

HASELTON, J. This was an appeal by the contestants from a decree of the probate court allowing and establishing a certain written instrument as the last will and testament of Nancy Esterbrook, late of Brattleboro. In county court a trial by jury was had. The verdict was in accordance with the contention of the proponents,peared that immediately thereafter Brackett, and judgment on the verdict was rendered. The will was contested on the grounds of lack of testamentary capacity, undue influence, and want of due execution. Mrs. Esterbrook left 16 nephews and nieces, and they were her next of kin. Don H. Miller, one of the nephews, was the principal beneficiary under the will, and another nephew, William Miller, had bequeathed to him a substantial legacy. To the other nephews and nieces sums merely nominal were given. During the trial the contestants took various exceptions, all of which relate to the admission or exclusion of evidence.

at Vinton's request, called on Mrs. Esterbrook, and at her request summoned A. F. Schwenk, Esq., an attorney, who responded to the summons and drew the will in question. A part of the evidence as to the interview just referred to bore upon the mental condition of the testatrix, and the rest of it bore upon the question of undue influence, for it threw some light upon the circumstances leading up to and surrounding the execution of the will. The same witness testified that he had known the testatrix for a number of years, that she had lived across the street from him 18 or 19, Lilly Vinton, one of the attesting witness- and that he had seen her on quite a number es, was called by the proponents. She tes- of occasions before the two interviews re tified that she lived across the street from ferred to. Having so testified, he was, unMrs. Esterbrook, was acquainted with her, der objection and exception, permitted to and occasionally called upon her and visited say that so far as he could see there was with her. After narrating the circumstances no marked difference between her mental attending the execution of the will, she was condition at the times referred to and her permitted, under objection and exception, to mental condition during his previous acstate that on the occasion of the execu-quaintance with her. It is urged that there tion of the will she noticed no peculiarities was no basis for the comparison, inasmuch in the talk or actions of Mrs. Esterbrook. as the exceptions do not show that the witBut in connection with her other testimony ness had said anything about her mental the statement that she observed nothing pe- condition in earlier years. But without culiar in the testatrix-that is, nothing such testimony the evidence objected to strange, unusual, or unnatural-was admis- tended to show that her mind was not in sible. Fairchild v. Bascomb, 35 Vt. 398, 417. any marked degree affected by increasing Hilma Anderson, another attesting wit- age, and so was admissible. Sargent v. Burness, was called by the proponents. She tes-ton, 74 Vt. 24, 28, 52 Atl. 72; Fairchild v. tified as to the circumstances attending the Bascomb, 35 Vt. 378, 417. execution of the will, as to remarks of Mrs. Leonora E. Smith was a witness called Esterbrook in respect to the will and other by the proponents. She testified that she For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

frequently called upon and talked with Mrs. Esterbrook, and that the latter's mental condition was sound and all right. This testimony she gave without objection. Under objection and exception she was then asked if she ever saw the testatrix do or say anything that was not consistent with a sound mind. She said she never did. The question was so amended as to limit the time of the inquiry to the period since the death of Mrs. Esterbrook's daughter Julia. The answer was, in substance, repeated. This question, either with or without the amendment, was not strictly within the rule which requires a lay witness to base an opinion of a person's sanity upon things testified to by the witness, although such a question is held proper in Massachusetts. McCoy v. Jordon, 184 Mass. 575, 69 N. E. 358. But the witness had already testified that the testatrix was mentally sound and all right and, so far as the exceptions show, had been permitted to do this without restriction, and the matter received under objection and exception added nothing to the testimony the witness had already given, and so, if improper, was harmless.

dition at the latter time. In re Jane Mason's Will, 82 Vt. 160, 72 Atl. 329; Chickering v. Brooks, 61 Vt. 554, 562, 18 Atl. 144; Crocker v. Chase, 57 Vt. 413. The case last cited is somewhat relied upon by the contestants; but their claim is not supported by that case, the doctrine of which is clearly explained in the Mason Will Case first above cited.

Don H. Miller, the nephew who was the principal legatee, was a witness and was permitted, under objection and exception, to testify as to his financial condition and his income. This testimony was made admissible by evidence in the case which tended to show that Mrs. Esterbrook was conversant with his financial condition. Crocker v. Chase, 57 Vt. 413, 421; Fairchild v. Bascomb, 35 Vt. 398, 417. He also testified as to the straitened circumstances in her lifetime of his mother, long since deceased, and as to the relation which existed between his mother and her sister, the testatrix. The contestants argue that this evidence was clearly inadmissible; but it was received without objection, and this fact dispenses us from considering its admissibility.

Shortly after the execution of the will, Don H. Miller brought a petition to the probate court asking that a guardian be appointed for Mrs. Esterbrook on the ground that she was physically and mentally incapable of taking care of herself and property. A hearing was had upon this petition and a guardian was appointed. In Miller's cross-examination he was asked this question: "When there was a hearing involving the question of your aunt's sanity, upon your request, and a petition signed by you, stating that she was of unsound mind, did you testify as a witness in support of that

William Miller, one of the beneficiaries referred to, was a witness. In the course of his cross-examination he testified that when he visited Brattleboro he did not visit any of his relatives except Mrs. Esterbrook and a Mrs. Smith, that he had some reason for not doing so, and that Mrs. Esterbrook did not know the reason. Thereupon in redirect examination, under objection and exception, counsel for proponents were permitted to show that the reason did not exist until after the death of Mrs. Esterbrook, and to ask what the reason was. The witness said, "I was told not to call on her." It was material to show that the reason referred to in cross-petition?" This question was objected to on examination did not exist until after the death of the testatrix, and, while the statement of the witness as to what the reason was was immaterial, it was brought out in redirect examination upon a matter introduced into the case by the contestants in cross-examination, and it was proper for the proponents to show that the reason was immaterial.

Some time prior to her death the testatrix had a fall. Kate Cressy, a witness for the proponents, testified to a conversation with the testatrix, had about a month after the execution of the will, in which the latter explained how she fell. Under objection and exception she stated that Mrs. Esterbrook's explanation was that she went upstairs to see the dog, that he was hurt, and that in coming down she fell, that she thought she had got to the last stair, thought she had got down, and stepped off and fell. This explanation of Mrs. Esterbrook was properly received, since the character of the statements indicated something as to her mental condition at a time very near the time of the execution of the will, and so

the ground that it contained an unwarranted assumption. But the question was insisted upon and the form of it defended as intended to elicit the understanding of the witness as to the character of the hearing upon the petition. The court excluded the question, and properly did so. The question to which the witness was obviously expected to say yes or no was whether he testified as a witness in the proceedings for the appointment of a guardian. He could not well give a proper answer to that question, and in the same answer express his understanding of the character of the hearing. The question did, in fact, contain an unwarranted assumption. P. S. 3159; Cowdry's Will, 77 Vt. 359, 60 Atl. 141. This same witness was, however, cross-examined, for the purpose of impeachment, as to his testimony on the guardianship hearing. Various questions and answers taken from his testimony therein were read to him, and he was required to say whether or not he so testified. Thereafter in redirect examination he was asked the following question,

trance?" reference being had to a visit to he could not recall whether or not he did Mrs. Esterbrook's home. The question was say so. The witness said that he published answered, but it does not appear from the the article of his own motion and had some bill of exceptions what the answer was, nor interest in the matter as counsel for Mr. the significance of this elliptical question, Childs, but not otherwise so far as he could and the transcript is not referred to on this say. The examination above referred to, point. He was asked if upon a repetition and more to the same effect, was proper of the question he did not answer, "I haven't in cross-examination, for the obvious purbeen there since a week ago last Thursday." | pose of it was to show the interest of the He was also asked if this question was put witness and his zeal in behalf of one of the to him, "And her mind appeared as clear contestants. as ever?" and if his answer was, "Yes, it Mr. Carpenter was inquired of in further did." The witness replied that he thought cross-examination as to the affair of a cerhe so testified. All this was subject to obtain tin box, the nature of which does not jection and exception, but it is to be inferred that it was related to that part of his former testimony about which he had been inquired of by way of impeachment on cross-examination, and that so it was ad

missible.

Rollin S. Childs, one of the contestants, was a son-in-law of Mrs. Esterbrook. The contestants' evidence tended to show that he had always been dutiful in that relation and had endeavored to the best of his ability to carry out every wish of his mother-in-law, and that her dislike for him, which there was evidence tending to show, was unnatural and the result of an unbalanced mental condition on her part. A. P. Carpenter, Esq., was a witness in behalf of the contestants, and it appearing that he was present at the guardianship hearing, and the proponents' evidence tending to show that it was the expressed desire of Mrs. Esterbrook to have Lucius Richardson appointed as her guardian, the proponents, under objection and exception, undertook to show that at that hearing Childs made objection to the appointment of Richardson. The apparent object of the inquiries in this behalf was to meet the claim that Childs was solicitous to carry out the wishes of Mrs. Esterbrook. Nothing material was elicited, for the witness could not say whether Childs did or did not object to the appointment of Richardson. There was not much relevancy in the inquiries, since Childs might have thought that Mrs. Esterbrook's desire to have Richardson as her guardian was not her real wish, but that it, too, resulted from an unbalanced mental condition; but as nothing came of the inquiries, and as they may be thought to have a remote relevancy, we find no error.

appear from the exceptions. He said that at the request of Mr. Childs he wrote a letter to Mr. Miller in regard to the box. This evidence was received under objection and exception, but these were general. If any question of privilege was involved, it was not raised. The cross-examination in the matter of the tin box, and the doings of the witness in reference thereto, were within the rule permitting cross-inquiries for the purpose of showing the feelings and attitude of a witness and his relations to the parties and to the case.

Z. H. Albee, the probate judge' who sat in the hearing of the petition for the appointment of a guardian, testified in behalf of the contestants that on June 1, 1908, he called upon Mrs. Esterbrook, that he found her lying on a bed apparently in a dazed condition, that he asked her about the matter of a guardian several times, that she did not appear to comprehend his questions and did not appear to know that he was there, and he gave his opinion as to her mental condition, based upon his observations as testified to by him, that it was such that she did not realize that he was there or what he was there for. In cross-examination he was asked if anything occurred to him at the time of the visit as to the care Mrs. Esterbrook was receiving. He said he thought not, from observation. This inquiry and answer were not objected to, and could not well be, for it was material to know whether the condition in which the judge found Mrs. Esterbrook was primarily due to mental weakness, or whether it might have been temporarily brought on by lack of care, nursing, and nourishment. Having given the answer stated, the witness was asked if he recalled a conversation in Mr. Fitt's office immediately after the visit to Mrs. Esterbrook. His reply was in the affirmative. He was then asked if in that conversation he did not say that there should be somebody there to care for her, a trained nurse. Here an objection was interposed, and two or three questions and answers were put and given under objection and exception on

It appeared that Mr. Carpenter was counsel for Mr. Childs in several matters, and, under objection and exception, the proponents in cross-examination brought out the fact that the witness wrote, for a Brattleboro paper, a communication with regard to the guardianship and Don H. Miller, and that this communication was published. The witness said he could not tell whether the ground that the inquiries were not prophe signed the article by his own name simply or as attorney for Rollin Childs, but that he was attorney for Mr. Childs at that time and may have said so in the article, though

er cross-examination. But these inquiries were calculated to refresh the recollection of the witness as to what he observed on the occasion of his visit to Mrs. Esterbrook

and were proper in view of the previous therein expressed were such that they might testimony of the witness.

Perkins & Co. Demurrer to pleas sustained, | 582. Chitty shows how a retraxit should be and pleas adjudged insufficient, and defend-pleaded, and gives this form: "The said A. ant brings exceptions. Affirmed and re- B. came into the said court in his own prop

manded.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

er person, and confessed that he would not further prosecute his suit against the said C. D., but from the same altogether withdrew himself." 3 Chitty, Pl. 477. The reason of

EL A. Ashland, for plaintiff. Lee S. Tillot- the law is found in the limitations upon the

son, for defendant.

power of an attorney in respect to the cause of his client. Granger v. Batchelder, 54 Vt. 248, 41 Am. Rep. 846; Carter v. Talcott, 10 HASELTON, J. The action is general as- Vt. 471; Penniman v. Patchin, 5 Vt. 346. In sumpsit. In county court the plaintiff sought Vail v. Conant, 15 Vt. 314, there is a disto recover upon six promissory notes. The cussion of the authority of an attorney redefendant pleaded the general issue, and filed specting his client's cause and the breadth two special pleas. To the special pleas the of that authority is fully recognized, but in plaintiff demurred generally. The demurrer the course of the discussion it is said in apwas sustained, the special pleas were adjudg-proval of a New York case that he cannot ed insufficient, the defendant excepted, and enter a retraxit. the case was passed to this court before trial. The first special plea sets out that the plaintiff brought a suit before a justice to recover on three of the notes in question, and that, after the suit has been continued from time to time, the plaintiff "by his attorney" named in the plea "confessed that he would not further prosecute his said suit before said justice of the peace against said defendant, but from the same altogether withdrew himself, and then and there discharged the said defendant from all liability to said plaintiff | in said justice suit." It is claimed by the defendant that this plea sets up a retraxit.

The facts further set forth as matter of defense in the defendant's second plea are these: After the plaintiff had instituted the suit returnable before a justice, and before referred to, the defendant brought a bill in chancery against the plaintiff and his attorney, in which he alleged that the notes now sued on were without consideration and void, and that the plaintiff so knew, and that the plaintiff was endeavoring to cheat and defraud the defendant. In the bill in chancery the defendant here prayed that the notes in question might be declared to be without consideration and void, and that their surrender to the defendant might be decreed. In the bill the defendant here prayed for, and was granted, an injunction restraining this plaintiff and his attorney from prosecuting his suit before the justice pending the chancery case. In the chancery case a decree on the merits was rendered dismissing the bill. The plea avers that the plaintiff might have filed a cross-bill in the chancery suit, and therein have recovered upon the notes in question, but that he did not file such cross-bill and did not therein seek affirmative relief.

It is urged in argument that on these facts the subject-matter of this suit is res judicata, that the plaintiff might have filed a cross-bill in chancery and recovered on his notes in the proceedings there, and that, since he filed no cross-bill, he is now estopped from main

The second plea sets up a distinct ground of defense which will be considered, and also alleges what has been recited with regard to the suit before the justice, and that the plaintiff "by his attorney" on a day to which the suit had been continued "confessed that he would not further prosecute his said suit before said justice of the peace against this defendant, but from the same altogether with drew himself." The same second plea contains the allegation that on a day named "the plaintiff did not further prosecute his said justice action against this defendant, but from the same altogether withdrew himself." From the prior allegations of this plea, just recited, it is to be taken that the pleader here alleges that the course taken was by attorney. A retraxit is quite different from a discontinuance or a nonsuit. By it a plaintiff retaining this suit. But the suit in chancery nounces his right of action and his renunciation is irrevocable. Hence an attorney has no authority to enter a retraxit for his client. This was resolved in Beecher's Case, 8 Coke, 58a. In 3 Salked, 245, the observations of the reporter are, in substance, that a retraxit must be always in person, and that an attorney cannot enter a retraxit. A retraxit may be entered by a plaintiff or a defendant, and the whole learning of the subject is condensed by Lilly, when he says: "A retraxit is where the party, plaintiff or defendant, comes into court in proper person where his cause is depending, and says that he will not proceed any further in his cause. Now this is a bar to the action forever." 2 Pract. Reg.

having been brought to prevent the plaintiff from proceeding at law, and having failed, the defendant cannot be heard to say that nevertheless the plaintiff cannot proceed at law. To hold otherwise would be to enable a defendant at his will in any case, or, at least, in any similar case, to draw the subject-matter of litigation into a court of equity. Lord Bacon, in words which Justice Story placed upon the title page of his work on Equity Jurisprudence, said: "Chancery is ordained to supply the law, not to subvert the law." To maintain the defendant's contention would be a subversion and denial of the plaintiff's legal rights. Sprague v. Waldo, 38 Vt. 139.

The principle that he who invokes the aid