Hobart v. Cook

167 Mass. 55 | Mass. | 1896

Morton, J.

It was conceded at the argument that when the issues were framed no question was raised concerning the execution of the alleged will. At the trial in the Superior Court it was admitted by the appellants that the paper which was offered and read against their objection and exception was the identical paper which was signed by the testator and attested by the three subscribing witnesses, who subsequently were called and testified, and was the same paper offered in the Probate Court and on which the appeal was taken to the Supreme Judicial Court. The appellants contended, however, that the paper was not admissible in evidence, except upon proof of the signature of the testator by the subscribing witnesses, as in the case of other instruments when the signature is attested by subscribing witnesses. 1 Greenl. Ev. § 569. But this objection, if it had any force at the time when it was made and the will was read, was avoided by the fact that the subscribing witnesses were subsequently called and testified to the execution of the will by the testator. Although the ruling admitting the will in evidence seems to have gone on the footing that its formal execution was, as the appellees contended, to be assumed, they were not thereby precluded from calling the subscribing witnesses later, and when called they did not cease to be subscribing witnesses and examinable as such. If the appellants had expressly admitted the formal execution of the will, it nevertheless would have been competent for the court to allow the appellees to call the subscribing witnesses to testify as such. , Commonwealth v. McCarthy, 119 Mass. 354. We do not see that it was any the less within its power to do so because it had ruled that the formal execution was to be assumed, or that the appellees were to be regarded as having waived the right to call the subscribing witnesses to testify as such because the ruling was as they had contended that it should be. Neither the court nor the appellees were limited in the conduct of the trial to the phase of the case presented by the ruling. Exceptions overruled.