| N.H. | Dec 15, 1866
Lead Opinion
In Judge of Probate v. Stone, 44 N. H. 593, it was held that the party on whom the burden of proof in the first instance devolved was entitled to open and close ; that to determine which party is to begin, and of course which shall close, is to consider which would get the verdict, if no evidence were given on either side, and the right to begin is with the one who in that way would lose his case; and that a verdict will be set aside when the court at the trial has given the close to a party not entitled to it.
In this case the issues sent from the law term were joined upon averments of plaintiff: 1st, that the testatrix was not of sane mind at the time of making said will, &c.; and 2d, that she was induced to make the will, &c., by undue influence. As these issues are made up the burden of proof would seem to be on the appellant, and not on the executrix, and hence that the ruling of the court was wrong, in giving the close to the executor.
But it is said in Judge of Probate v. Stone, p. 605, "in appeals from the probate court for proving a will, it matters not which party is the appellant. The party who affirms that a will was made, has the primary burden of proof and the accompanying right to close.” Now the case states that this is a case of appeal from the decree of the judge
In Perkins v. Perkins, 39 N. H. 163, 167, which was a case like this, both in its nature, form and objects, and where the form of the issues was also the same as here, Bell, C. J., in delivering the opinion says : "The object of the proceeding is to prove the due execution of a written instrument. In most cases such proof is offered in order to the admission of the instrument in evidence. But in the case of the proof of a will the evidence is offered to lay the foundation of a decree that the will has been proved, which may supersede the necessity of proving it again. The substance of the proof is the same in both cases. The instrument itself must be produced unless in a few excepted cases where secondary evidence is admitted; and the attesting witnesses must be produced and examined, if they are living and within reach of the process of the court. They are to be produced by the party who offers the instrument, or who seeks a decree that it has been proved. * * * * The usual formal proof being offered, the law comes in with its presumption that the party is sane, and this presumption stands until evidence is offered tending to raise a different belief. * *' * Evidence being introduced, the issue is to be determined by the preponderance of the whole evidence as in other cases, though the party offering the proof of execution continues to have the legal presumption of sanity and capacity in his favor till the end.
Though ordinarily no question need be asked of the witness who testifies to the execution of an instrument, relative to the capacity of the grantor, yet, owing to the nature of the proceedings in the case of wills, that the probate of the will is the foundation of the grant of power to the executor, to take possession of the estate and the charge of administration, it is, in that case, the long settled practice of courts of probate to require that the witnesses to wills should be examined as to the fact of the sanity of the testator before the will is established. * * This practice is equally binding as the law in such cases, upon the >Supreme Gourt, as on the ordinary courts of probate.”
In thus stating the long established practice in this State in cases of this kind, the reason will be seen why it has been the equally well established custom for the executor or administrator to open and close. It being understood that the object of the proceeding is to prove the due execution of the will without regard to the particular form of the issues, the executor must first produce the will to be proved, and call the subscribing witnesses if alive and within the jurisdiction. The affirmative is in fact on him, and he has uniformly been allowed the close.
If this class of cases, on account of the peculiar form in which
The second point in the case includes the second, third and fourth exceptions which all relate to the admissibility of the opinions of witnesses, not experts, upon the question of the sanity of the testator, said witnesses not having attested the will. The ruling in this case is understood to be in accordance with the long established and uniform usage in this State, ever since the decision in Hamblett v. Hamblett, 6 N. H. 333. There, the directions of the judge at the trial to the jury were "not to rely upon any evidence of opinion as to the sanity or insanity of the testator, except what was derived from the subscribing witnesses to the will.” There were no experts offered. In the opinion that point is expressly left undecided, but it is believed that the ruling there made at the trial, has been since followed, and that the opinions of such witnesses have been uniformly excluded. We are well aware that in many States the decisions are the other way, but there is by no means a uniformity upon this question.
There is not only much conflict in the decisions of different States and countries upon that point, but the grounds upon which such opinions have been admitted are to my mind entirely unsatisfactory. In many of the leading cases in which such opinions have been held admissible, it has been upon the ground of necessity. It is said that in questions of sanity, witnesses- are generally unable from the nature of the case, to state the facts upon which their opinions are founded, and therefore that such opinion should be received in evidence, yet they almost invariably hold that before these opinions can be given the witnesses must state the facts upon which the opinion is founded, thus in effect compelling the witnesses to do the very thing which it has just been assured they cannot do, and imposing on them the very difficulty, the necessity of obviating which, was made a ground, and the principal ground, of establishing this exception to the general rule of evidence. Many of these authorities also hold that juries must be instructed to give these opinions little or no weight, unless appearing to be supported by the facts and circumstances which it has just been asserted that the witness cannot state intelligibly.
"A rule so fraught with contradictions” and which practically nullifies the reason of its adoption, can hardly command or receive the assent of the reason as a sound principle of law, even though a numerical majority of the decisions reported, and based upon such grounds and such reasoning, might be found to favor it. We believe in practice no difficulty is found in the witness describing the acts, the sayings, and
Redfield in his treatise on Wills, page 144, after noticing the decisions of the several States where the opinions of witnesses, who were neither subscribing witnesses to the will, nor experts, have been allowed on the question of sanity, says : "This presents a considerable array of authority, sufficient, we think, to allow any court to decide the question in that direction, unless it regards the true principle applicable to the case as lying in the opposite direction.” We think that the true principle lies in the opposite direction.
The general rule that opinions of witnesses are not evidence is well established and everywhere admitted. The rule that experts may give opinions on matters of science and skill stands upon distinct and independent grounds, and that rule is well established and everywhere admitted.
The exception that subscribing witnesses to a will, though not experts, pray give their opinions in regard to the sanity of the testator, is placed by many upon the ground that the testator has selected and chosen these witnesses as being those best qualified to state in regard to all points necessary to be proved, in order to establish the will. But we are inclined to give little weight to tins consideration since all who are familiar with the practice in such cases knew that ordinarily- the testator has nothing to do with selecting the witnesses to his testament. The scrivener usually calls on those who are nearest at hand, and who can most conveniently be had to attest the execution of the instrument he has drawn. The latter reason we think, as stated in Redfield on Wills, p. 140, is to be found in the fact that the statute only requires credible or competent witnesses, and that it is not competent for courts to require in such a case more than the statute, or to say that when the statute defines the requisites of a witness, he is not to be regarded as competent to testify to every point directly involved in the issue, whether the paper presented for probate be the will of the alleged testator or not. We see no reason for carrying this exception any farther than the statute has thus carried it, in the case of sanity any more than on any other question.
In some States they allow the opinions of witnesses to be given on almost every subject. Perhaps it is not strange that there they should include insanity. But the tendency in this State has been to adhere to the well established rule, and to exclude the opinions of witnesses not experts. Lowe v. Railroad, 45 N. H. and cases cited.
We agree in opinion with the court in Massachusetts, as expressed in Commonwealth v. Fairbanks, 2 Allen 511, where it is said that in general where the jury have the facts in detail, they are as competent to form a correct judgment as the witness, and the practical experience of those familiar with courts shows that the defence of insanity is one easy to be made, and favorably listened to by juries. The rule, therefore, should not be extended beyond the adjudicated cases. The practice in this State we regard as well settled and uniform, both in civil and criminal cases, with the exception above referred to of the subscribing witnesses to wills, that
What Green’s own opinion was upon the subject of his qualifications as an expert was entirely immaterial. That question was for the court alone. The witness might state his acquaintance with the subject, what he had done to qualify himself, &., but whether he had the qualifications of an expert, was a question of fact for the court to settle, and when the court had ruled that he was competent, the opinion of the witness on his own competency was in law entirely immaterial. Jones v. Tucker, 41 N. H. 546.
The declarations of the deceased subscribing witness were properly rejected. This question arose and was fully considered in Stobart v. Dryden, 1 Mees. & W. 615, and the evidence was rejected. Also in Flanders v. Davis, 19 N. H. 139, it was held that where the attesting witnesses to a deed were dead there was no presumption that if living they would testify that the grantor was of sane mind at the time of the execution and delivery of the deed. The same question was settled in the same way in Baxter v. Abbott, 7 Gray 71; 1 Greenl. Ev. sec. 126.
There is no presumption that a witness to a will will state one way or the other in regard to the sanity of the testator. There is no legal presumption because the name of a person appears on a will as attesting witness, that the person actually attested it. That fact must be proved by evidence of hand-writing or the production of the witness, or in some other way. Where the witness has deceased or is beyond the jurisdiction, there is no presumption as to what he would say if living and present. All the presumption there is in such case is that the testator was sane, until some evidence is produced from some sotuce to prove the contrary.
The opinion of Dr. Green as to the sanity of the testatrix was properly admitted. The court had found the fact that he was competent as an expert. That made him competent to express an opinion upon the testator’s sanity, founded either upon his personal examination of, and acquaintance with the deceased, (Red. on Wills 154; 1 Leading Criminal Cases, 105,3 or according to our practice, upon a hypothetical case stated to the witness, and so proved as to resemble as near as may be the case under consideration. The jury can judge whether the case supposed is so far like the one they are considering as that the opinion of the expert on the supposed case is any guide to them in settling the question which they are to decide.
The ruling "that mere moral insanity, insanity of the moral nature, that is, disorder of the moral affections and propensities, will not, unless accompanied by insane delusion, be sufficient to invalidate a will or to incapacitate a person to make one,” was also, we think, correct.
In Frere v. Peacocke, 1 Robertson’s Eccl. R. 442, it was expressly held, Sir Herbert Jenner Fust delivering the opinion, that moral insanity, or the perversion of the moral feelings not accompanied with insane delusion, which is the legal test of insanity, was not sufficient to invalidate a will.
Dew v. Clark, 1 Adams 179, was a case of insane delusion on the part of the testator in regard to the character of his only daughter, whom he imagined to be vile, profligate, and depraved in the highest degree, and accordingly he treated her with the utmost severity and even cruelty, and finally cut her off in his will with an inadequate provision. But it was a dislike founded merely on delusion, for it was satisfactorily proved that while this delusion had gained such possession of his mind that nothing could shake Ms belief, yet in point of fact the daughter was amiable in disposition, engaging in her manners, of superior natural talents, diligent, dutiful, affectionate, modest and virtuous, and giving no occasion for the extraordinary feelings manifested by the father. The will being proved to be the direct result and offspring of this delusion, was set aside, Sir John Nicholl delivering the opinion, who held that "no course of harsh treatment, no sudden bursts of violence, no display of unkind or even unnatural feeling merely, could avail the daughter in proof to set aside this will, but that she must make out a case of antipathy clearly resolvable mto mental perversion, and plainly evmcing that the deceased was insane as to her, notwithstanding Ms general samty.” In the opinion he says :
"The true test of the absence or presence of insanity I take to be the*137 absence or presence of what, used in a certain sense of it, is comprisable in a single term, delusion. Whenever the patient once conceives something extravagant to exist, which has still no existence whatever but in his own heated imagination, and whenever at the same time having once so conceived, he is incapable of being, or at least of being permanently, reasoned out of that conception, such a patient is said to be under a delusion, in a peculiar, half-technical sense of the term, and the absence or presence of delusion so understood,'forms in my judgment the only true test or criterion of absent or present insanity. In short, I look upon delusion, in this sense of it, and insanity to be almost if not altogether convertible terms.”
He quotes Dr. Battie’s opinion, that "deluded imagination is not only an indisputable but an essential character of madness.” Also the opinion of Dr. Francis Willis, who says a sound mind is one wholly free from delusion. Weak minds differ from strong ones in the extent and power of them faculties, hut unless they betray symptoms of delusion, their soundness cannot be questioned. An unsound mind, on the contrary, is marked by delusion, &c.
The case of White v. Wilson, 13 Vesey 88, was very similar — a case of disordered affections — but one proved to be founded on an insane delusion. Taylor’s Med. Juris. (6th Ed.) 656, says a will may be manifestly unjust to the surviving relatives of a testator, and it may display some of the extraordinary opinions of the individual, yet it will not necessarily be void unless the testamentary dispositions clearly indicate that they have been formed under a delusion. Some injustice may possibly be done by the rigorous adoption of this principle, since delusion may certainly enter into a man’s act, whether civil or criminal, without one being always able to discover it, but after all it is perhaps the most equitable way of construing the last wishes of the dead.
Some medical writers claim that delusion is not the test, and that moral insanity alone — disorder of the moral affections — where the will is to any extent the offspring of such perverted state of the affections, should invalidate the will. Taylor’s Med. Juris. 556 ; Bay. Med. Juris, sec. 22. But the English courts, as we have seen, have manifested a reluctance to yield in any sense to the recognition of any such morbid affection as moral insanity. Bed. on Wills p. 82. The same author says on page 72, that the consideration of this form of insanity (that is, moral mania,) is important chiefly in the administration of criminal jurisprudence. It is not often that it can be called in question in the testamentary act. Yet the American courts have had this subject before them in many different forms. Lucas v. Parsons, 24 Geo. 640; Florey v. Florey, 24 Ala. 241" court="Ala." date_filed="1854-01-15" href="https://app.midpage.ai/document/floreys-executors-v-florey-6505243?utm_source=webapp" opinion_id="6505243">24 Ala. 241; Jenckes v. Smithfield, 2 R. I. 255, were cases where there was disorder or perversion of the affections, but in all of them this perversion of the affections was traced to an insane delusion, which had affected the mind.
In Stanton v. Wetherwax, 16 Barber 259, it is held that when a person conceives something extravagant to exist which has no existence whatever, save in his own heated imagination, but he is incapable of being reasoned out of that conception, such person may be said to be un
In Den d. Trumbull v. Gibbons, 2 Zabriskie (N. J.) 117, thehead note is as follows : "A will cannot be set aside on account of any moral obliquity, or prejudice of the testator, .exhibited in the devises in it, or because the disposition of property in it is unnatural or unjust.” "Strong, violent and unjust prejudices., if not founded on delusion, do not show mental incapacity.”
In that case one Thomas Gibbons had by will given most of his property to his son, William Gibbons, but had disinherited his .daughter Ann, and her husband John M. Trumbull, and their four children, who, after the decease of their mother, had leased to the plaintiff, who had by suit sought to recover possession of a farm given to said William Gibbons in his father’s will. Carpenter, J., in delivering the opinion says : "But it has been urged with great earnestness on the side of the lessors of the plaintiff, that there was hallucination of mind on the part of the testator towards Trumbull and his family, a causeless and unwarrantable dislike, amounting to monomania, and that this state of feeling was caused, or at any rate participated in, by the son who thus obtained the disposition in his father’s will. * * * While it is admitted that he (the father) was a man of more than ordinary vigor of intellect, yet it is said that he labored under a morbid state of mind of the character already mentioned, and that the will was the offspring of such feelings. Where delusion exists in' the mind of a person on one or more subjects only, it is termed partial insanity. I do not question but that partial insanity will invalidate a will which appears to have been the .direct result of .such insanity, though the testator at the time of making it may have been sane in other respects upon ordinary topics.” He adverts to the case of Dew v. Clark, before cited, and says, "that case turned on the fact of a remarkable delusion, the only clear test of insanity, unquestionably proved and it has since required the unqualified approbation of the profession.”
The jury had been instructed at the trial "that they were to inquire not whether the will was a fair will, a just will, an equitable will, the will of ■ a right-thinking man and a kind-hearted father, but is it Thomas Gibbons’ will ?” It was held that these instructions were right, and that it was proper that .the jury should not be permitted to nrr from feelings which possibly may have been excited by the harshness of the will, when the evidence was clear and the case free from doubt. And it was held, that, as there did not appear to be any delusion in the mind of the testator in regard to his daughter or her husband, but the feelings of anger manifested on his part towards them were caused by a lawsuit which they had instituted against him, and other family quarrels between them, the will, though it might seem harsh or .even unjust, ought to stand.
In Dennett v. Dennett, 44 N. H. 531, it is held that all that the law requires to make a deed effectual, is that a man should have possession of his reason so as to understand the effect of the act he is about to perform, where there is no-delusion. In 2 Greenl. Ev. 371, a, it is said,
Some writers recently, in treating of the subject of mania or active insanity, draw a distinction between the medical and the legal definition of the term; the medical including moral insanity or the perversion of the affections, while the legal excludes it and knows no criterion of the existence of insanity but delusion; 3 Am. Law Reg. N. S. 1; and on page 6, it is said there is a difference, it will be observed, between the legal and medical theory of active insanity. Delusion is essential to the legal idea of mania, but physicians do not attach the same irnportance to this feature of the disease.
It is difficult to conceive how insanity could be judicially established unless delusion of some sort were proved. But delusion offers a practical test of active insanity, and it is difficult to see how in a will case it would be practicable to administer the law or do justice according to law if moral insanity were held sufficient to avoid a will. See, also, 1 Jar-man on Wills 56, and note; 3 Am. Law Reg. (N. S.) 385, 399.
Delusion, in the technical sense as explained by Sir John Nicholl and others, is, then, the legal test of the presence of active insanity, and if the will is the offspring of tins delusion, it shordd be set aside, but if there is no such delusion, then there is no fact which is tangible as a matter of proof in a court of justice, upon which it would be safe or wise to act, and thus disturb those numerous testamentary dispositions of property which are made by those whose moral sense may be none of the keenest, or whose affections may not run in the same channel with those of their neighbors.
We all have likes and dislikes among our acquaintances and even among our relatives, and, it may be, among the members of our own families, for which we might not be able to give an intelligible reason, or one that would be satisfactory to another person, who did not see with our eyes and hear with our ears, and the operation of whose mind might not be like ours in every essential particular, and yet are we all insane because we dislike somebody that some one else likes, and because we malee a will according to these peculiarities of our views, must it be set aside? Better make a law that all a man’s propei*ty shordd be divided equally among his relatives, without regard to the peculiar views or preferences of the deceased owner, and prohibit the making of wills altogether. But so long as tire law allows a man to do what he will with his own, he may exercise his individual privilege of having preferences and prejudices as between friends and relatives and even children, without his being called on to give any reason further.
The other instruction, that, if the testatrix was under delusion, "but the will and its provisions were not in any way the offspring or result of the delusion, and were not connected with or influenced by it, then she was of sane mind to make the will, was, we have no doubt, correct. It was in accordance with the great weight of authority, ancient and modern, English and American, medical and legal. Many of the cases already referred to go directly to sustain it, and many more might be adduced besides those cited in the brief of the appellee, but they are unnecessary. The only opposing decision, would seem to be Warring v. Warring, 6 Moore P. C. 349, but this has never been recognized as authority either in England or this country. Red. on Wills 80, 86; 3 Am. Law Reg. 1, et seq. We think the rulings and instructions at the trial were correct, and that there must be
Judgment on the verdict.
Dissenting Opinion
dissenting:—
I. This is not a probate court, in a general sense or for all purposes. Many questions may be brought here by appeal from the probate court, but the appeal is a very different proceeding from that which brings a case from a justice of the peace. The latter is general in form, and without any assignment of grounds or reasons of appeal. A justice’s case, when it reaches this court, is not limited by the appeal; it is the same in form and substance as it was before the justice ; the whole case is to be tried as if it had been originally brought m this court. But in probate cases there is no general appeal. The appellant must set forth, in writing, the reasons of his appeal, and, in this court, he is restricted to such points as are specified in his reasons of appeal; everything else, not being objected to, is impliedly assented to, and presumed to be correct. Rev. Stat. ch. 170, sec. 2; Patrick v. Cowles, 45 N. H. 553. When an appellant, in his reasons of appeal, sets forth every possible objection to the probate of a will, and, in some other unusual cases, in which, to prevent a failure of justice, the probate jurisdiction of this court is construed liberally, every question concerning the probate of a will may arise here. Moses v. Julian, 45 N. H. 52; Perkins v. George, 45 N. H. 453. But, in this appeal, the will is not to be proved as if it were offered here for probate. The decree of, the judge of probate establishing the will as "proved, approved and allowed,” was not vacated by the appeal. Every decision -of a judge of probate, so far as it is affirmed or unaltered, is in force from the time it was made. Rev. Stat. ch. 170, sec. 12. The object of this proceeding is, not to prove the will, but to determine the questions of insanity and undue influence. The executor does not seek a decree that the will is proved. The formal execution of the will is established by the decree of the judge of probate, and admitted by the appellant. That decree, left unaltered, renders it unnecessary-to prove the will again, and continues the power
On a probate appeal, if any fact material to the cause is disputed, the court may direct an issue proper to try such fact to be formed, and ascertain the same by the verdict of a jury. Rev. Stat. ch. 170, sec. 11. If the appellant had, in his reasons of appeal, declared that the will was not signed by said Margaret nor by any person in her presence by her express direction, or was not attested and subscribed by the witnesses in her presence, or that there were less than three witnesses, or that the witnesses were not credible, the court might have ascertained the truth of such allegations by the verdict of a jury. But the only facts disputed in this appeal, were insanity and undue influence; there was, and there could be, no issue on any other subject; and the verdict was necessarily conformed to the issues. The jury have found, and we have ascertained nothing but the absence of insanity and undue influence. And if the jury had found, and we had ascertained, that, for-every other possible cause, the writing propounded in the probate court, was not the will of Miss Blydenburgh, the decree of the judge of probate would remain in force notwithstanding the verdict. That decree needs not, in any respect, or for any purpose, to be formally affirmed, and it cannot be reversed for any reason not alleged by the appellant.
Whether the form, or the substance, of the issues submitted to the jury, is regarded, the executor would be entitled to a verdict if no evidence were offered on either side. The appellant must introduce some evidence to prevent the verdict being against him. He must begin. And it was held in Judge of Probate v. Stone, 44 N. H. 593, that the party who must begin, has the right to close in argument, and that, if he is denied that right, the verdict against him must be set aside.
There is no occasion in probate appeals, for an exception to a general ruleo as to the right to close. It is said that the party who has the necessity of beginning, has the privilege of closing; that with the burden of proof he takes the advantage of the last argument. But it is often an advantage, and not a burden, to begin, without reference to the other advantage of having the close. Mercer v. Whall, 5 A. & E. (N. S.) 447, 460 ; 3 Chit. Gen. Pr. 885. When the plaintiff begins he is not entitled to the close as compensation for the necessity of making the first opening statement of evidence to be offered, for he is not required to make a statement, and if each party makes such a statement,' their burdens, in that respect, are equal; the defendant has no advantage because in his statement he is not permitted to argue or comment to the jury upon any part of the case. The plaintiff is not entitled to the close as compensation for the disadvantage of proving his whole case first, for he is only required to make out a prima facie case in the first instance. Pierce v. Wood, 23 N. H. 519. If the right to close is compensation
If, in England, the common law rule which, in some cases, gave the closing argument to the party who began, was just and reasonable, it is unjust and unreasonable in this State. In English practice the opening is an argument, as well as a statement of evidence to be offered. It is so far the appropriate occasion for argument, that, at common law, the party who begins, is not entitled to make an argument at any other time unless evidence is introduced by the other party. A change was made in 1854, (Roscoe’s N. P. Ev. 214; Best on Ev. Supplement 29,) but, at common law, if the plaintiff begins, and the defendant merely comments on the plaintiff’s case and adduces no evidence, the plaintiff cannot reply for he has already been heard. He is not entitled to the close in all cases, but only when there is testimony on the other side. The reason that gives him the right to close in argument, is apparently that which gives him the right to introduce proof in reply to the defendant’s case; having made his argument and offered all the evidence competetn to support his prima facie case, he has no occasion to reply with other arguments or other evidence, if no evidence is presented by the defendant. And when evidence is given on both sides, and the plaintiff produces evidence in contradiction of some new facts stated by the defendant’s witnesses, the defendant, in his second argument, is not entitled to reason upon the whole case, but on the subject of contradiction only. 1 Starkie Ev. 365 ; 3 Chit. Gen. Pr. 872, 880, 881, 885, 886, 903, 905, 906, 909, 910; Pullen v. White, 3 C. & P. 434; Faith v. M’Intyre, 7 C. & P. 44. The plaintiff must, in the first instance, present all of his evidence that is then competent. He cannot go into a part of his case and reserve the remainder till the defendant rests. 1 Gray Ev. sec. 74; 3 Chit. Gen. Pr. 883, 909, 910; Rees v. Smith, 2 Stark. 31; Jacobs v. Tarlton, 11 A. & E. (N. S.) 421. The plaintiff, in opening, argues upon his whole case, and the defendant, in opening, has an opportunity to reply to the plaintiff’s argument, and to argue upon the plaintiff’s evidence and his own. The theory seems to be, that the second argument of the defendant is upon the plaintiff’s replying evidence, and that the plaintiff’s second argument is upon the defendant’s
If such is the theory upon which the English rule as to the close is founded, it is immaterial whether the English practice does', or does not, correspond strictly and fully with the theory. There is no theory or practice, in this State, upon which that rule can stand. Here, no argument is allowed in the opening on either side, and the party who is no t entitled to begin, has no opportunity to reply to the argument of the other party, as he has in England. These contrary results of the same rule in diverse systems of practice, show that if the rule is right in England, it is wrong in this State, and that, if it is right here, it must be established upon independent grounds,- and not upon English- authorities, or upon rules or decisions based solely on English precedent.
By the practical operation of the common law rule in England, when evidence was given on both sides, each party had an opportunity to reply to the argument of the other; by the operation of the same rule in New Hampshire, only one party has that opportunity. The result in England is manifestly just — is in analogy to the arrangement of pleading and evidence, and should be reached through some reasonable and convenient rule of court. The pleadings show who must begin; the closing argument belongs to the party who, upon the main questions submitted to the jury, is practically and substantially on the defensive. The first address on each side after the conclusion of the evidence, should be the only opportunity for general argument; any subsequent speech should be a reply strictly limited. At some time, in some manner, each party should be allowed to reply to any view' of the evidence, or any course of reasoning, presented on the other side, which he could not reasonably have anticipated, and by which he is surprised and his cause endangered. There should be no unyielding rule, under’ which either party might be prejudiced for want of an opportunity to make a proper reply, or under which the court might seem called upon to prevent injustice by suggesting a reply which ought to be made by counsel. In our practice, the English rule giving the close in argument to the party who begins, is purely arbitrary. To grant a new trial wdien the close is given to the party not entitled to it under that rule, is to deslroy a verdict because the losing party did not have an unfair advantage over his opponent. If the right to close is so valuable that the verdict depends upon its being assigned in accordance with such a rule, it is too important a right to be monopolized by either side. Neither party should have so great an advantage over the other.
When the burden of establishing a preponderance of the evidence is put upon the wrong party, the verdict, if against him, maybe set aside. But a verdict is not disturbed on the ground that the wrong party was permitted to open or to close, unless it clearly appears that some substantial injury has resulted. This is a sound principle fully sustained by numerous authorities. The only case in conflict with them, cited in Judge of Probate v. Stone, is Davis v. Mason, 4 Pick. 156. How
II. The verdict on the issue of sanity should be set aside, because the opinions of ordinary witnesses, founded upon personal observations of the appearance and conduct of Miss Blydenburgh were rejected. Since the decision in Dewitt v. Barley, 9 N.Y. 371" court="NY" date_filed="1853-12-05" href="https://app.midpage.ai/document/dewitt-v--barley-and-schoonmaker-3618651?utm_source=webapp" opinion_id="3618651">9 N. Y. 371, was overruled in the same case, 17 N.Y. 340" court="NY" date_filed="1858-06-05" href="https://app.midpage.ai/document/de-witt-v--barly-and-schoonmaker-3584121?utm_source=webapp" opinion_id="3584121">17 N. Y. 340, there has been almost perfect unanimity of authority in favor of such testimony. The supposition that such opinions are not received in the English common law courts is erroneous. Eagleton v. Kingston, 8 Ves. Jr. 438, 449, 450, 452 ; Tatham v. Wright, 2 Russ. & Myl. 1,pp. 375, 376 of Ingraham’s edition; S. C. under the name of Wright v. Doe d. Tatham, 1 A. & E. 3, 12 ; S. C. 7 A. & E. 313, 325, 326, 340, 351, 359, 372; S. C. 5 Cl. & Fin. 670, 680, 684, 686, 687, 690 691, 699, 714, 719, 724, 735, 738, 746; Erskine’s Speeches, vol. 1, pp. 507, 517. The admissibility of such opinions seems never to have been doubted in England, unless by Goleridge, J., in 5 CL & Fin. 690, -691. They are competent because, considered in connection with the means of observation on which they are based, they are the best evidence of which the case in its nature is susceptible. From the nature of the subject, it cannot generally be so described by witnesses as to enable others to form an accurate judgment in regard to it. For like reasons, the opinions of non-experts are received as the best evidence in regard to identity, handwriting, age, form, size, weight, measure, strength, speed, time, distance, heat, cold, quality, quantity, number, and a great portion of the most familiar facts and occurrences of common life. Practical reasons
Some of the authorities require the witnesses first to state the facts upon which their opinions are founded. Enough of those facts must be stated to show that the opinions are founded upon matters within their own knowledge and observation, and not on hearsay or the proof before the jury. Experts alone can give opinions upon the usual abstract questions and hypothetical .cases touching this subject. In this case it was necessary for Dr. Green and the subscribing witnesses to state some of their means of forming opinions as to the sanity of Miss B. before giving their opinions directly on that point; and it would have been a proper exercise of the discretionary power of the court, to require them first to state all their means of knowledge, as the value of their opinions necessarily depending somewhat thereon, all such means could be brought out on cross-examination, and would appropriately precede the statement of opinion as they preceded the formation of it. The opportunities of observation, and the facts and appearances observed, are competent evidence. A witness must give some evidence of that kind to render his opinion competent, as when he gives an opinion upon a question of identity or hand-writing ; when it appears that he had some means of forming an opinion, whether he shall state all his means first is a matter within the discretion of the court.
The opinion of an unprofessional witness is competent, not because he can give no description of the appearances which indicate sanity or insanity, but because, ordinarily, he cannot give an adequate description of them. The law, always demanding the best evidence, receives his opinion because his description of symptoms alone is not the best. The admission of the opinion is not the exclusion of the description. That the opinions of non-experts are not rejected by the reception of the opinions of experts, is shown in the uniform practice on questions of handwriting.
The distinction in regard to allowing the subscribing witnesses to a, will, a peculiar privilege in giving their opinions, and denying that privilege to others, is rightly pronounced by Judge Redfield to be wholly groundless and absurd. But the admission of the opinions of the subscribing witnesses shows that the fear that jurors are not qualified to weigh the opinions of unprofessional persons has not- assumed the form of a rule of law. The subject of the competency of evidence and the mode of practice, as affected by the character of the tribunal, is alluded to in Stephens v. People, 19 N.Y. 549" court="NY" date_filed="1859-09-05" href="https://app.midpage.ai/document/stephens-v--the-people-3598846?utm_source=webapp" opinion_id="3598846">19 N. Y. 549, 556 ; Wright v. Tutham, 5 Cl. & Fin. 670, 692, 769; and Ashby v. Bates, 15 M. & W. 589, 594, 596. The employment of great subtlety in excluding evidence, in this State, may have been encouraged by a distrust of the capacity of jurors. Some peculiar, narrow, and inconvenient rules have gradually become established here, in derogation of the common law. Among them, is the rule which excludes opinions as to value of property. That rule is supposed to be based on the ground that, in general, opinions
The executor was permitted to ask several of his witnesses whether they ever observed anything peculiar or strange in Miss B.’s conduct or conversation, or manner of expressing her views on religious subjects, or otherwise, other than they had stated, and one of his witnesses — a lady — was allowed to testify that she could not tell what Miss B. said on religious subjects, but that she talked well. Hamblett v. Hamblett, 6 N. H. 333, 344. To ask a witness, on such a trial, whether Miss B. appeared peculiarly, or strangely, was substantially to ask whether, in the witness’ opinion, she was insane. The appellant’s witnesses were allowed to testify that she appeared excited. It is some consolation to reflect, that, where the refinements of the law attempt to enforce a rule of evidence not based upon reason or principle, or the common experience of mankind, it is usually found impracticable in its application to the detail of a trial. Bedfield on Wills 145, note 25. But this consolation is diminished by the fact that swift witnesses, however instructed, checked and reprimanded, generally succeed in giving their opinions, while the cautious and impartial, whose opinions are much more valuable, are often limited to very meagre and unsatisfactory testimony.
Witnesses, not experts, may testify that a horse appeared well and free from disease. Spear v. Richardson, 34 N. H. 428 ; Willis v. Quimby, 31 N. H. 485. They may testify that a man appeared to be sick or well, although they may not be qualified to give their opinions as to the character, cause, duration or proper treatment of particular diseases; and they are competent to give opinions upon the presence or absence of mental, as well as of physical, disease. They may say that a person was cheerful or depressed, that he seemed to recognize, or not to recognize, his friends and acquaintances, that he appeared as usual or not as usual, naturally or unnaturally, peculiarly and strangely, or otherwise, all which are matters of opinion. Opinions as to insanity and intoxication stand upon very similar ground; People v. Eastwood, 14 N.Y. 562" court="NY" date_filed="1856-12-05" href="https://app.midpage.ai/document/the-people-v--eastwood-3577412?utm_source=webapp" opinion_id="3577412">14 N. Y. 562 ; Fenton v. Holloway, 1 Stark. 126 ; and, as to the condition of mind in other respects, tiiey are competent. McKee v. Nelson, 4 Cowen 355, cited in Robertson v. Stark, 15 N. H. 109, 114; Trelawney v. Colman, 2 Stark. 191. Such opinions as those rejected in this case, were received in Corey’s Case, Cheshire, 1830, and in Prescott’s Case, Merrimack, 1834.
III. The verdict on the issue of sanity should be set aside, because the court instructed the jury that delusion is the test of what was called active insanity; and that moral insanity without delusion does not incapacitate a person to make a will. The provisions of the statute which
The question whether Miss Blydenburgh had a mental disease was a question of fact for the jury, and not a question of law for the court. Whether delusion is a symptom, or a test, of any mental disease, was also a question of fact, and the instructions given to the jury were er
The misunderstanding which prevails on this subject, arises from the fact that medical errors of former days gained the sanction, and the name, of law, by being published in lawbooks of high authority. Such a transformation was not difficult in times when courts were accustomed to instruct juries in regard to matters of fact and weight of evidence, and when the distinction between the duty of the court and the duty of the jury was not clearly defined and observed in practice. Hale and Coke unfortunately copied the opinions of the medical authorities of their day on the subject of insanity, and their successors were slow to question anything endorsed by so great names. The errors of those opinions have in time been discovered and abandoned. But it has not been sufficiently observed that they were medical errors corrected by medical men. And now the other medical theory that delusion is a test, introduced long after the times of Hale and Coke, having been adopted by an ecclesiastical court in England, is claimed to be law, although it is purely a matter of science. The decisions of the ecclesiastical courts are not authorities on this point, for, in those courts, the judges are judges of fact as well as of law. The authorities that recognize delusion as the test, are based on Dew v. Clark, 3 Addams 79, decided in 1826, in which case Sir John Nicholl said : "The court is confirmed in, or rather possibly has derived, this its own view of the subject, by and from writers as well medical as other, best qualified to discuss it, and upon whose authority accordingly it may safely rely. It is thus, I apprehend, that delusion, in the sense that I have explained it, is made the distinguishing feature of insanity by Dr. Battie in the first chapter of
Nicholl referred to no legal authority, and it is evident that his view was derived wholly from medical authorities. It does not appear that he regarded the question as one of law, but rather the contrary, and therefore Dew v. Clark is not authority; and, as all subsequent authorities on the same point, are expressly built upon that case as settled law, and are not sustained by reason or principle, they all fall together.
In Hadfield’s Case, tried in 1800, the great effort of Erskine as counsel, was to induce the court and jury to discard the ancient tests of insanity, to accept the medical theory of their own day, and to acquit on the ground of delusion. The act charged having been committed by reason of delusion, it was necessary for him to maintain only that if there was delusion there was insanity, and not that there was no insanity if there was no delusion. But it was expedient for him, as an advocate, to allay the prejudices of the tribunal, by suggesting that if the new theory proposed by him was adopted, the revered stability of notions would not be further impaired by other similar innovations ; and he professed to admit that in the absence of delusion, his client would have been guilty, although he referred with approval to the case of Ann Broadric, who, in 1795, was acquitted of murder, on the ground of madness without delusion.
In Dew v. Clark, and in nearly all the cases cited on this subject, there was delusion, and therefore it could not be a point decided, that delusion is the only test. The definitions of mental disease, contained in books of law, show nothing but the former state of medical science,
Insane delusion cannot be adopted as a definition of insanity, on the ground of convenience. Innocent persons cannot be punished as criminals, nor can property and guardianship be disposed of by invalid writings, merely because it is difficult for the court to give to the jury a scientific definition of a pathological fact, which it is the duty of the court not to give. And it has not been shown that there is less difficulty in defining insane delusion, than there is in defining insanity.
Furthermore, if we are to take judicial notice of a fact as settled by the scientific knowledge of experts, we must recognize the fact as established by the unanimous medical authorities of our day, that there is a mental disease sometimes called moral insanity, and that delusion is not the test of it. Hale and Coke adopted the received medical opinion of their day, and Nicholl professed to adept that of his time, which was in conflict with the former. If we go back to 1826, or 1800, for medical information, we might, with equal reason, go back to the physicians of Hale’s time, or to Galen or Hippocrates. If we are to follow a progressive science, it is not necessary to follow at a greater distance than did Hale and Nicholl. If it is necessary that the law should entertain a single medieal opinion concerning a single disease, it is not necessary that that opionion should be a cast-off theory of physicians of a former generation. That cannot be a fact in law, which is not a fact in science; that cannot be health in law, which is disease in fact. And it is unfortunate that courts should maintain a contest with science and the laws of nature, upon a question of fact which is within the province of science and outside the domain of our law. All inconsistencies and difficulties are avoided by adhering to the spirit and elementary principles of the law, which declare that a will cannot be produced by any form of mental disease, and that the indications and tests of mental disease are matters of fact.