314 Mass. 336 | Mass. | 1943
There are two appeals, one from a decree of the Probate Court allowing the will of Mary F. Kelleher, the
1. It is unnecessary to recite the evidence or the findings of fact. Copperman v. Turner, 303 Mass. 448. Kaler v. Kaler, 305 Mass. 345. The printed record, consisting of five hundred one printed pages, has been read and examined, and we are of opinion that the findings cannot be disturbed. There was evidence warranting the finding that the legal requirements for the execution of the will were complied with. See G. L. (Ter. Ed.) c. 191, § 1. On the question of undue influence, the subsidiary findings are supported by the evidence, and the judge’s ultimate finding, that there was no undue influence, is consistent with the subsidiary facts found. The same can be said of the issue as to the decedent’s mental capacity. See Needham Trust Co. v. Cookson, 251 Mass. 160, 161, 162, and cases cited.
2. Exceptions saved by the contestants during the course of the trial require consideration.
After one of the witnesses to the will had testified on cross-examination to the effect that she signed the will before the decedent did, the judge said to counsel for the proponent: “You understand the answers this witness is giving to the questions?” to which counsel replied: “Yes.” The cross-examination of the witness continued and in the course of a question that, in effect, repeated what the witness had said as to the time when she signed as a witness to the will, counsel for the proponent interrupted; thereupon the judge said: “Wait, I realize it is very important. Of course the will goes out if that is the fact.” He then told counsel for the contestants to proceed. On redirect examination the witness testified that the decedent signed before she did. Whereupon the judge said: “Well, you just told Mr. Mansfield [counsel for the contestants] three or four or five times that you signed first.” It is not neces
The will was executed on November 12, 1937. The decedent died on May 8, 1942. One of the contestants was asked in direct examination what was the attitude of the principal beneficiary under the will toward her on the nights of the “wake.” The question was excluded, subject to exception. The witness was then asked what she talked about with this beneficiary during the “wake.” Upon inquiry by the judge as to the purpose of the question, counsel stated that it was to show hostility toward the contestants, and that, during the lifetime of the decedent, he was equally hostile and tried to turn her against them. This question was excluded. Thereupon the witness was asked what the
There was evidence that the decedent had.said that she paid for a monument that was placed on the cemetery lot in which her mother was buried. The judge found that she had said this, as well as other things, with reference to her dissatisfaction with the stone and with the manner in which the names had been carved upon it. He found, however, that the stone had been purchased by a cousin of the decedent with whose consent the decedent’s mother had been reinterred in the lot and that this cousin bought the lot and paid for the monument in question. The contestants offered in evidence certain bank books of the decedent for the purpose of referring to certain withdrawals made at about the time of the decedent’s talk about this monument, as tending to indicate that the decedent drew money for the purpose of paying for it. This also was excluded, the trial judge stating that, in effect, the withdrawals could not be used for the purpose indicated unless “you can connect . . . [them] up with some evidence to that effect.” There was no error in this. The judge found that the decedent did say that she had paid for the monument. The extent to which matters remote from the vital issues may be gone into is a matter of discretion. Commonwealth v. Lammi, 310 Mass. 159, 164, and cases cited.
Subject to the exception of the contestants, a physician who attended the decedent during an illness in 1936, and during her last illness that began in Novembér, 1941, was allowed to give his opinion as to her mental capacity based upon the results of his observations of her. There is nothing in the contention of the contestants that' the opinion ex
The physician was properly allowed to testify as to his observations. Murphy v. Donovan, 295 Mass. 311, 314-315, and cases cited. No question is raised as to the form of questions that were put to the witness or to the relevancy of his answers. The contention is made, however, that inasmuch as the physician was not asked and did not state the facts upon which his opinion was based, this made his evidence inadmissible. Reliance is placed upon the early cases of Hathorn v. King, 8 Mass. 371 and Dickinson v. Barber, 9 Mass. 225. In the first of these cases the attending physicians were asked whether, in their opinions, at the time of executing the will the deceased was of sound and disposing mind and memory. The jury found the requisite capacity of the decedent at the time her will was executed, and the will was allowed. A per curiam opinion, apparently expressed during the trial, is as follows: “The physicians may be inquired of, whether, from the circumstances of the patient, and the symptoms they observed, they are capable of forming an opinion of the soundness of her mind, and if so, whether they from thence conclude that her mind was sound or unsound; and in either case, they must state the circumstances or symptoms from which they draw their conclusions.” Nothing more appears in this case upon this point. In the second case, depositions of two physicians who testified as to the insanity of the defendant were excluded. The report of the case is by Tyng in which he states that the rejection of depositions was confirmed by the court in that the “deponents state no facts on which they ground their opinion. This is to be required from physicians as well as others.” (Page 227.) It does not appear whether the physicians in question ever
In Commonwealth v. Rich, 14 Gray, 335, a physician, who knew the defendant but who apparently had never attended him, was not permitted to testify as to the defendant’s mental capacity. In holding that the question was inadmissible this court said that it was "because it did not relate to matters within the observation of the witness as a physician called to observe the symptoms of a patient, or to make any examination of his case, or to treat him medically; but merely to his general observation, in regard to which he had not shown himself qualified to testify as an expert.” In Commonwealth v. Spencer, 212 Mass. 438, 447, reference is made to the duty of an attending physician and to the fact that in appropriate cases he is permitted to testify from his own observations as to the patient’s mental capacity. It was said at pages 447-448: “But such a physician
In Commonwealth v. Johnson, 188 Mass. 382, the defence was insanity, and it was held that the omission of any instruction that experts testifying for the Commonwealth as to the mental condition of the defendant should state the grounds or reasons for their opinions was untenable. It ■ was said at pages 388-389: “If the defendant desired their reasons his counsel was not precluded from asking for them on cross-examination. There is no general rule of practice which makes it imperative on the party calling such a witness that after he has been duly qualified, and given an
The rule that attending physicians may give their opinions as to the mental capacity of their patients is said to be a well recognized exception to the general rule that a witness who does not come within one of certain recognized classes cannot give an opinion as to the soundness of mind of a person. Clark v. Clark, 168 Mass. 523, 525. Experts having proper qualifications come within this exception. If an expert may express an opinion upon a matter as to which he is qualified to give an opinion without stating his reasons therefor, it would seem, that an attending physician may do so all the more. In the case of the latter, his opinion must necessarily be based upon his observations of his patient. Subscribing witnesses to a will are allowed to give their opinions concerning the mental capacity of the decedent whose will they witnessed. The facts which enter into the forming of an opinion by an attending physician come from his observations; they do not have to be founded upon any psychopathic tests or other data.
In Hathorn v. King, 8 Mass. 371, the statement of the court may be well read as authority for the proposition that the attending physician, as a part of any opinion expressed by him, must at the same time state the circumstances or symptoms from which the conclusion is drawn. It is to be observed that the question in that case that was under consideration was whether, in the opinion of the attending physicians, the decedent was of sound and disposing mind. It is possible that the statement of the court may also be construed to the effect that an attending physician may give his opinion, and that he also may be required to state the basis of his opinion during the trial of the case, although not necessarily while he is under direct examination. It is to be observed that for a considerable period of time, the
3. The proponent, as already appears, appealed from the interlocutory decrees allowing costs and expenses to the contestants’ counsel. We cannot quite say that this allowance was an improper exercise of the discretion of the judge. See, however, Old Colony Trust Co. v. Third Universalist Society of Cambridge, 285 Mass. 146, 151, and cases cited; Spilios v. Papps, 292 Mass. 145, 147-148, and cases cited.
4. The contestants filed in this court a motion for the costs and expenses of prosecuting their appeal and of de
Interlocutory decrees affirmed.
Final decree affirmed.