Carpenter v. Hatch, 15 A. 219

Carpenter v. Hatch

15 A. 219 | N.H. | 1888

The testimony that Kendall, when he lived in Tyngsborough, attended the church of which Mial Davis, the father of one legatee and grandfather of another, was a deacon, and sat in the pew with him and his family, and that he acted as guardian for the grandson, was competent for the purpose of showing the testator's relations to the Davis legatees, and affording a reason for his manifestation of interest in them. It was open to the defendants to argue to the jury that legacies to strangers indicated an unbalanced mind, and it was proper for the plaintiff to show that the legatees were not strangers. There is no foundation for the objection that the evidence touching Kendall's acting as guardian was secondary. No attempt was made to show that he was a legal guardian. The plaintiff was not precluded, by the fact that he was not in law a guardian, from showing that in fact he took charge of and cared for the boy and his property as a guardian would.

The declarations of Diantha and Charles W. Carpenter against their interest as legatees under the will were incompetent. They were not parties to the suit. Atkins v. Sanger, 1 Pick. 192; Shailer v. Bumstead,99 Mass. 112, 128, 129. The question put to Ednah Hatch, asking what her deceased husband said was the amount of the testator's securities, was properly excluded as calling for mere hearsay. His decease did not make his declarations competent. The act of examining the securities and computing their amount was immaterial, and his statement was not admissible as a part of the res gestae. Morrill v. Foster, 32 N.H. 358, 360; Ordway v. Sanders,58 N.H. 132.

The opinion of Emma L. Carpenter, that the testator was of sound mind, was admissible. Hardy v. Merrill, 56 N.H. 227. Whether she was qualified to give an opinion was a question of fact for the trial court. Jones v. Tucker, 41 N.H. 546; Bundy v. Hyde, 50 N.H. 116. *577

The will itself was evidence to show that the testator, when he executed it, was informed of the amount and character of his property. The evidence that in November, 1885, he was fully cognizant of the amount and character of his property had some tendency, and, if he remained in possession of his faculties, a strong tendency, to show that he had the same knowledge a few months later when he executed the will and codicil.

There was no presumption of law or of fact that Mason A. Carpenter controlled the testator's mind, and that the codicil was invalid for that reason. State v. Hodge, 50 N.H. 510; Bank v. Getchell, 59 N.H. 281. Whether he did or did not control or improperly influence the testator was a question of fact for the determination of the jury upon all the evidence, including his relations to the testator, his acts and conduct in respect to the making of the will and codicil, and the benefit he derives from them. It was submitted to the jury with proper instructions. Lord v. Lord,58 N.H. 7, 11.

The instructions asked for by the defendants in their third request were given. It was not necessary that the court should adopt the defendants' precise language. Other exceptions, not urged in the argument, have not been overlooked.

Judgment on the verdict.

SMITH, J., did not sit: the others concurred.