Evidence, Declaration by deceased person. Practice, Civil, Preliminary examination by judge as to evidence of declaration by deceased person.
At the trial of issues relating to whether a will was executed by a testator of sound mind or was procured to be executed by undue influence, evidence was offered by the appellant of a declaration by a deceased person of a statement made to him by the testator, which declaration would have been admissible in evidence under R. L. c. 175, § 66, if the judge had found that it was made in good faith and upon the personal knowledge of the declarant. At the preliminary hearing by the judge, required by the statute, no evidence was produced although the judge suggested that it should be, and the judge, while stating that he was willing to assume that the deceased person made the declaration, also stated, "Beyond that I am not satisfied," and excluded the evidence subject to an exception by the appellant. Held, that, because the judge did not find that the statement of the deceased person was made in good faith, and his action could not be said to be unjustifiable, the exception must be overruled.
JENNEY, J.
The only question is, whether there was error in the exclusion of declarations made by a deceased person and offered in evidence under R. L. c. 175, § 66.
During the trial of issues involving the soundness of mind of the alleged testator, and undue influence alleged to have been exercised upon him by Semira D. Ellis, Lelia M. Ellis, and John D.W. Bodfish in procuring the execution of a will and codicils, Harriet A. Fish was examined concerning a statement, which, it was contended, had been made to her by her brother, Roland J. Green, who had died in the lifetime of the testator. An offer of proof was made that the brother had said to the witness that the testator had asked him to tell her that he would like "to come and see her, but the Ellises will not let" him.
If the brother had been living and had been a witness, his evidence to that effect clearly would have been admissible, the statement having been made within the period to which testimony had been limited by the judge. There had been introduced evidence of impaired mental condition and undue influence by Semira D. Ellis and Lelia M. Ellis, sufficient to furnish a basis for the admission of the statement.
The statute requires a preliminary finding by the court, that the declaration offered "was made in good faith before the commencement of the action and upon the personal knowledge of the declarant."
The presiding judge, who excluded the evidence, found, at the preliminary hearing required by the statute, that the deceased brother made the statement to the witness, and said: "Beyond that I am not satisfied." He did not find that the statement was made in good faith. On the record, this action cannot be said to be unjustifiable, and therefore it is not reviewable. McSweeney v. Edison Electric Illuminating Co. 228 Mass. 563. In the absence of such finding, the evidence was properly excluded. Slotofski v. Boston Elevated Railway, 215 Mass. 318.
Exceptions overruled.