Healey v. Bartlett, 59 A. 617

59 A. 617 | N.H. | 1904

When a testator is not prevented by physical infirmities from seeing and hearing what goes on around him, it is the general, if not the universal, rule, that his will is attested in his presence if he understands and is conscious of what the witnesses are doing when they write their names, and can, if he is so disposed, readily change his position so that he can see and hear what they do and say. Casson v. Dade, 1 Bro. Ch. 99; Shires v. Glascock, 2 Salk. 688; Davy v. Smith, 3 Salk. 395; Riggs v. Riggs,135 Mass. 238; Hopkins v. Wheeler, 21 R.I. 533, — 45 Atl. Rep. 551; Cook v. Winchester, 81 Mich. 581, — 46 N.W. Rep. 106; Cunningham v. Cunningham,80 Minn. 180, — 81 Am. St. Rep. 256. In other words, if he has knowledge of their presence, and can, if he is so disposed, readily see them write their names, the will is attested in his presence, even if he does not see them do it and could not without some slight physical exertion. It is not necessary that he should actually see the witnesses for them to be in his presence. They are in his presence whenever they are so near him that he is conscious of where they are and of what they are doing, through any of his senses, and are where he can readily see them if he is so disposed. The test, therefore, to determine whether the will of a person who has the use of all his faculties is attested in his presence, is to inquire whether he understood what the witnesses were doing when they affixed their names to his will, and could, if he had been so disposed, readily have seen them do it.

Unless the legislature intended to discriminate against testators who are deprived of the use of some of their faculties by mere physical infirmities, — and there is no evidence that they did, — the same test, so far as it is applicable to persons in their situation, must be applied to determine when a will is attested in their presence. It is clear that a witness who is in the presence of a testator who can see would still be in his presence if the testator should instantly become blind. So when a testator is deprived of the use of any of his faculties by mere physical infirmities, the test to determine whether his will is attested in his presence is to inquire whether he was conscious of the presence of the witnesses and understood what they were doing when they wrote their names, and could also, if it had not been for his physical infirmities, readily have seen and heard what they were doing, if he had been so disposed. Raymond v. Wagner, 178 Mass. 315; Maynard v. Vinton, 59 Mich. 139, — 60 Am.Rep. 276, 283, 284. It follows that if the testator's broken leg prevented him from readily seeing what the witnesses were doing when they attested his will, the jury were correctly instructed as to what would constitute an attestation in his presence.

If an experiment has any legitimate tendency to prove any matter in issue in the case on trial, it is relevant to that issue. But the fact that it is relevant does not make it admissible as a matter of law. To make such evidence admissible, it must appear not only that it is relevant, but also that it will have tendency to aid, rather than confuse, the jury. Whether it has such a tendency is not a question of law, but one of fact. So the question raised by an exception to the admission of such evidence is whether it was relevant to any issue in the case — not whether it would be likely to aid or confuse the jury. State v. Saidell, 70 N.H. 174, 176; Burg v. Railway, 90 Ia. 106, 116, 119, — 48 Am. St. Rep. 419, 427; Hart v. State, 15 Tex. App. 202, — 49 Am. Rep. 188; United States v. Ball,163 U.S. 662, 673. What could be readily seen and heard from the position which the testator occupied when his will was attested was in dispute, and it is clear that the evidence excepted to was relevant to that issue.

Exceptions overruled.

All concurred.