107 A. 630 | N.H. | 1919
There are in this case a large number of exceptions to the admission of evidence. Many of these relate to testimony tending to show the relations of the various parties, their feelings, purposes and actions. Many others relate to the state of mind of the decedent, to the rationality, or otherwise, of her views, to influence exerted over her, to fraud practised upon her, and to a plan to deceive the heirs as to the extent of her property and the terms of the will she had made. The issues tried being the sanity of the testatrix and fraud or undue influence in procuring the execution of the will, all the matters above enumerated were material and evidence upon them was properly received. In such a trial the field open to investigation is very broad. The argument that much of the evidence was hearsay, is based upon the erroneous idea that many of these questions were not material to the issues tried. So far as the exceptions rest upon this argument they must be overruled. Gibson v. Boston,
It is urged that the testimony of the appellants to facts occurring in the lifetime of the decedent should not have been received, because under our decisions the injustice to result from its exclusion must appear from evidence other than the testimony of the surviving party. P.S., c. 224, ss. 16, 17; Harvey v. Hilliard,
It is important to note at the outset that from the earliest decision under the statute (Chandler v. Davis,
It may be remarked in passing that no case has been found where such injustice was considered to have been established. We have no reported case permitting the survivor to testify to facts known to the decedent. In Hoit v. Russell,
The rule excluding the survivor's testimony from consideration upon the issue of injustice has no application when the offer is to introduce evidence of facts unknown to the decedent. If the facts *208
are of the latter class, they are admitted under the general rule established in Chandler v. Davis, supra, without regard to their importance or insignificance in the case. As to such facts, the survivor is a competent witness. Being a competent witness, his evidence is received so far as it appears to be of the admissible kind. The questions of the importance of his testimony and the hardship of the situation are not involved here, and the rule excluding his testimony on those questions has no application. In such cases those questions are not considered because there is no occasion to look for added proof upon which to base a finding of injustice, for that finding is made upon the offer of the evidence. The contrary holding in Fosgate v. Thompson,
It is significant that, as before stated, all but three of the reported cases relate to efforts to introduce the testimony of the survivor to facts known to the decedent. From this it is evident that the rule first laid down in Chandler v. Davis, that in general the survivor should be permitted to testify to facts not known to the decedent, has been followed in practice and acquiesced in by the bar. The claim that the offer of proof is not a sufficient basis for the ruling though supported by Fosgate v. Thompson, supra, is denied in substance by what was said in Harrington v. Tremblay,
An examination of the opinions in the cases where the rule excluding the survivor's testimony on the preliminary issue has been stated confirms this view of its scope. In nearly every one of them the broad general doctrine that the survivor can testify to facts not known to the decedent is stated, and that is assumed to be the conclusion of the whole matter as to such cases. Howie v. Legro,
No case has been cited or found holding that the fact that the decedent could not have contradicted the testimony, if living, must be shown by evidence other than the testimony in question. If expressions in the cases on the question of proving injustice are broad *209 enough to cover this phase of the matter, it does not appear to have been the intent that they should do so. As before stated, they were designed to apply solely to the case where the survivor seeks to testify to facts known to the decedent.
The practice at trials has been that approved in Parsons v. Wentworth,
This line of procedure does not open the door for the survivor to fabricate a case. The rule that it must appear that the facts were unknown to the decedent, of necessity limits the evidence very closely. Bean v. Bean,
A part of the testimony to which objection is here made related to conversations with the executrix and her husband, who were charged with procuring the execution of the will by fraud and undue influence. These conversations were alleged to have taken place after the execution of the will, and in part at least tended to show that the executrix and her husband were carrying out their scheme of fraud by deceiving the heirs at law as to the extent of the estate and the provisions of the will. It was clearly admissible under the rule unless it appeared that the decedent might have testified to the same facts, if living. The testimony of Henry Follansbee is not open to objection upon this ground. It was to the effect that the proponent's husband said the talk about the testatrix being possessed of more than $1300 was false, and included an offer by him to show the witness her two bank books containing credits for that amount only. It appeared from the inventory, and was not disputed at the trial, that she had three bank books representing credits of $2600. This evidence had no *210 tendency to prove or disprove any litigated fact which could have been known to the decedent. Its sole use was to prove that the proponent's husband was actively engaged in an attempt to deceive the heirs. There was no error in admitting this evidence.
The testimony of Charles Follansbee as to his conversation with the executrix is in part of the same general character. It tends to show acts done in the execution of a scheme to defraud. Upon this ground, Charles' testimony that she said the will "won't make no difference with you boys" was admissible. But another part of the same conversation, which was received in evidence, stands somewhat differently. The witness was allowed to state that the executrix told him that she advised the testatrix about the will and "told her that she must make a will" in order to cut off a brother's widow. One probative effect of this evidence was to show that the executrix caused the testatrix to act. This was a fact to which the testatrix, if alive, could testify, and the evidence was therefore inadmissible for this purpose, under the statutory rule excluding the survivor. But the testimony had another bearing upon the case. It tended, like the other evidence which has been considered, to prove the executrix's attempts to deceive the heirs as to what the will was and why it had been made. For these purposes it was admissible. In this view it was of no consequence whether the executrix did or did not so advise the testatrix. The value of the evidence was that it showed the execution of a continuing purpose to deceive and overreach the heirs. If the evidence had not possessed this probative value it would not have been admissible upon any ground, even if there had been no statute excluding it. Not only would it violate the rule as to facts known to the decedent if used for any other purpose, but if she were alive it would be inadmissible in a suit against her. So far as it tended to show influence over her it was merely an admission, and, being the admission of a third party, it was not evidence against her. Carpenter v. Hatch,
Other testimony of Charles was received which would have been clearly inadmissible under the statute, but for the fact that before it was offered the executrix elected to testify generally, and did so testify. As up to the time of her election there had been no error in admitting testimony against her, the rule that she could testify and still preserve her objection (Jordan v. Jordan's Estate,
Exceptions overruled.
PLUMMER, J., was absent: the others concurred.