Evidence, Remoteness, Opinion: experts. Probate Court, What parties may oppose allowance of will. Will. Waiver.
At the trial, on an appeal from a decree of the Probate Court disallowing a will, of an issue as to the soundness of mind of an alleged testator on May 20, 1905, the time of the execution of the instrument offered for probate as his will, the presiding justice without objection by the petitioner "fixed January 1, 1901, as the reasonable limit of time as to which evidence of the condition of the testator could be introduced." The contestants offered evidence as to acts and conduct of the alleged testator between January 1 and January 3, 1901, tending to show such unsoundness, and also the opinion of a physician, who attended the testator from January 8 to February 19, 1901, that he was not then of sound mind, and the evidence was admitted, the petitioner alleging an exception solely on the ground of remoteness. Held, that the exception must be overruled, the question as to whether the evidence was too remote being one to be determined by the presiding justice in his discretion, and there being nothing to indicate that such discretion was not exercised rightly.
At the trial, on an appeal from a decree of the Probate Court disallowing a will, of the issue whether or not the alleged testator was of sound mind, the following statements by a witness were admitted in evidence: that, at a time not too remote from the time of the executing of the alleged will, the testator "seemed to want to" superintend some work, "but could not concentrate his thoughts"; that the testator's habits in the use of liquor (such use and the excessive use of cigarettes being alleged to have caused general paresis resulting in mental unsoundness) never changed "but seemed rather to have a fuller mastery"; that on a certain occasion the testator committed "the deliberate act of scaring horses driven by" the witness, resulting in an arm and some of the ribs of the witness being broken, and, although the testator was present at the scene which followed, "it was not until the following day that he came to say that he had just heard of the accident." The statements were objected to as including expressions of opinion. Held, that the statements fairly came within the rule that a witness may state the results of his observation, even though that does in some measure involve his opinion or judgment as to matters which cannot be exactly reproduced or described to the jury precisely as they appeared to the witness.
At the trial of an issue, framed on an appeal from a decree of the Probate Court disallowing a will, as to whether the alleged testator was of sound mind at the time of the execution of the will, there appeared as appellees, contesting the validity of the will, one who was next of kin to the testator, and also one who alleged that he was a creditor of the testator and that by agreement with the testator as such creditor he had been made a beneficiary in a former will of the testator. Without any objection on the part of the appellant, and with the concurrence of counsel for the next of kin, the active conduct of the case of both of the appellees was carried on by counsel for the creditor, he opening the case to the jury, calling all the witnesses, offering depositions which he had procured to be taken and cross-examining witnesses. At the close of the evidence, the appellants requested the presiding justice to rule in substance that upon all the evidence the creditor had no standing to oppose the allowance of the will, and that his rights would not be affected adversely by its allowance. The rulings requested were refused, the creditor's counsel was allowed to make the closing argument to the jury for the appellees, and the appellant alleged exceptions. Held, that the question whether the creditor had any standing to object to the allowance of the will was not open on the exceptions, since the jury were not to determine whether the will should be allowed, but solely to answer the question put to them with regard to the soundness of mind of the alleged testator. Held, also, that under the circumstances the presiding justice was right in allowing the counsel for the creditor to make the closing argument for the appellees.
SHELDON, J.
1. The petitioner's exceptions to the admission of testimony cannot be sustained.
The telegrams admitted were objected to only as being too remote. But each one of them was within the limit of time which previously had been fixed by the single justice, so far as appears without objection by either party. Three of these telegrams, those sent by the alleged testator, come within the general doctrine that the appearance, acts, conduct and declarations of one whose mental condition is in issue may be put in evidence, if they are of such a character as to throw light upon that question, and if they are not too remote in time. And whether they are too remote in time is a question which must be determined in the discretion of the justice who presides at the trial and hears the evidence, and his conclusion is not to be reversed unless it was manifestly unfounded. Hagar v. Norton, 188 Mass. 47, 52. McCoy v. Jordan, 184 Mass. 575, 576, 577. Lane v. Moore, 151 Mass. 87, 90. Commonwealth v. Pomeroy, 117 Mass. 143, 148. Shailer v. Bumstead, 99 Mass. 112, 130. We find nothing to indicate that this discretion was not rightly exercised in the case at bar. And for the same reason the testimony of Dr. MacDonald to his opinion that the alleged testator was of unsound mind early in 1901 and to the grounds of this opinion, was competent. It was not contended that Dr. MacDonald, who had been an attending physician to the deceased, was not qualified under our rules to express an opinion.
The testimony of Heakes was not incompetent as including statements of his mere opinion. He testified to the things which he himself had observed. His testimony cannot be said to have been irresponsive. It does not appear to have gone beyond his personal knowledge. It comes fairly within the rule that a witness may state the results of his observation, even though this does in some measure involve his opinion or judgment as to matters which cannot be exactly reproduced or described to the jury precisely as they appear to the witness. So far as they include opinions, these are rather conclusions in the nature of facts which have become a part of the knowledge of the witness than mere opinions. They are received ex necessitate, because of the impossibility of reproducing the numerous particular facts upon which they are founded. This is the general doctrine of our decisions. Partelow v. Newton Boston Street Railway, 196 Mass. 24, 31. McCoy v. Jordan, 184 Mass. 575, 578. O'Neil v. Hanscom, 175 Mass. 313. Commonwealth v. Sturtivant, 117 Mass. 122, 123. Barker v. Comins, 110 Mass. 477. Parker v. Boston Hingham Steamboat Co. 109 Mass. 449. This doctrine was fully discussed, with abundant citation of authorities by Rugg, J., in Gorham v. Moor, 197 Mass. 522.
2. The question whether Pratt had any standing to object to the allowance of the will is not open upon these exceptions. The jury were not to determine whether the will should be allowed, but simply to pass upon the issue whether the alleged testator was of sound and disposing mind and memory. No question was raised when the case was opened to the jury or while the evidence was going in, of the right of Pratt as well as of Henry E. Weston to participate in the trial. Apparently by arrangement between these two as contestants, the active management of the contest against the will was left mainly to Pratt's counsel. It was he who called all the witnesses for the contestants, who had procured and who put in the depositions taken in their behalf, who cross-examined the petitioner's witnesses except for "a question or two" put by the other counsel, and who substantially conducted the whole trial, and manifestly was relied upon by both contestants to make the concluding argument to the jury. All this had been done with the concurrence of the other contestant, and without any hint of objection by the petitioner. Under this state of facts, the justice had a perfect right to allow Pratt's counsel to make the closing argument to the jury, if indeed he was not bound to do so. It could not be material whether the counsel in making that argument was to be regarded as acting for the one or for the other contestant. It was the weight of his reasoning and not his representative capacity that was to be considered. If his argument contained anything objectionable, yet the petitioner did not care to make the objection or to ask for any rulings with reference thereto. And the justice might well refuse to give to the jury either of the three instructions asked for. None of them had any bearing upon the only issue which was to be submitted to the jury, and upon which alone it was the duty of the justice to instruct them; and the giving of them could have had no other effect than to distract the attention of the jury from that issue. Accordingly, we need not consider the very interesting question whether Pratt, by reason of the appointment made in a former will in his favor, had any right to object to the allowance of this will, or whether any of his rights would have been injuriously affected by such allowance. If, now that it has been settled by the verdict of the jury that William H. Weston was of unsound mind when he executed this alleged will (Busiere v. Reilly, 189 Mass. 518, 520; Crocker v. Crocker, 188 Mass. 16), the petitioner cares to raise the question of Pratt's right to be heard in opposition to its allowance, we need not consider whether he can do so at the hearing which will be had before a single justice to determine what decree shall be entered.
The bill of exceptions stated that adequate instructions, to which no exception was taken, were given as to all issues other than those referred to in the three requests for rulings. This was all that was called for.
Exceptions overruled.