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,
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,
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,
Exceptions overruled.
All concurred. *113