Clifford v. Taylor, 204 Mass. 358

Clifford v. Taylor

204 Mass. 358 | Mass. | 1910

Krowltoít, C. J.

The exceptions in this case were taken during the trial of issues before a jury in the Superior Court, upon a petition for the probate of a will. The verdict was against the executor upon the question whether the testatrix was of sound mind, and the issue in regard to undue influence was not answered.

The appellant from the decree of the Probate Court was permitted to prove, by a member of the bar, that at one time he was employed in the office of Mr. Bixby, another attorney, and that the testatrix came to the office “ to have Mr. Bixby draw a *360will, and that Mr. Bixby told her to go up and see Dr. Borden, a Brockton physician, and that if Dr. Borden thought she was fit to make a will, come back, and he, Bixby, would make it.” The question of privileged communications between attorney and client was waived by the heirs and the executor of the testatrix. This testimony was admitted, subject to the executor’s exceptions. It seems to us incompetent. It brought before the jury the fact that an attorney whom she wished to employ doubted her competency to make a will, and that his doubt of her mental capacity was só great that he virtually refused to make a will for her, unless she would bring him the opinion of a physician, whom he mentioned, that she was of sound mind. This testimony showed the opinion of a person whose opinion was not competent evidence, that she did not seem to him of such mental capacity that it was proper for him to make her will. It was, in substance, a declaration of the attorney to that effect. Neither his opinion nor his declaration of it was competent to show her mental condition. Sewall v. Robbins, 139 Mass. 164, 168. Baxter v. Abbott, 7 Gray, 71, 82. Such an opinion, so declared, would be likely to have a great influence upon a jury, prejudicial to the executor.

Often a statement made by one person to another, which is not competent in itself, is made competent by way of introduction, to give effect to language or conduct of the person to whom it is addressed. The important evidence in such a case is, what was said or done by the person to whom the statement was addressed, and the statement itself is made a necessary part of the evidence, to render the subsequent conduct intelligible. In this case there was nothing of this kind. We have the bare remark of Mr. Bixby, without anything to show what the testatrix said or did, or how she received it. This testimony should have been excluded and the exception must be sustained.

The request in regard to the appointment of a conservator was refused rightly, and the instruction given was correct. The judicial determination of the facts that must be proved, under the statute,* before a conservator can be' appointed, and the status of the person whose property is held by a conservator, are some evidence of weakened faculties, affecting his ability *361properly to manage and dispose of property. It does not create a presumption of incapacity to make a will, but it is a fact proper for the consideration of a jury in determining the question of soundness of mind. R. L. c. 145, § 40.

The petitioner requested the judge to instruct the jury as follows: “ Although the executor has the burden of proof upon him to satisfy the jury that the testatrix was of sound and disposing mind and memory at the time of the execution of the will, there is a presumption of sanity, and that presumption stands until it is rebutted.” Using the word “ rebutted ” in the sense of “ met by evidence to the contrary,” the proposition is correct. Richardson v. Bly, 181 Mass. 97, 99. Looking at the instruction on this subject in different parts of the charge, it is not clear what the jury would understand as the law of the case. Some of the judge’s language seems to be substantially in accordance with this proposition. Other language seems to imply that, the moment an issue is presented by a denial of sanity, the presumption becomes of no effect, and the case is to be tried upon the evidence introduced by the parties, as if there were no presumption. The true rule is that the presumption is enough to sustain the burden of proof, until evidence is introduced which tends to control it. On the introduction of such evidence, the case is to be determined upon the whole evidence, including the presumption of sanity, and if the preponderance of the evidence is in favor of sanity, the burden of proof is sustained and the jury will find for the executor. If, upon the whole evidence, including this presumption, the scales are in even balance, the finding will be for the contestant, on the ground that the executor has failed to sustain the burden of proof. Fulton v. Umbehend, 182 Mass. 487. Cohasset v. Moors, ante, 173.

Exceptions sustained.

R. L. c. 145, § 40.