228 Mass. 26 | Mass. | 1917
Harriette A. Whitmore died October 17,1915; and this is a contest over her will, which was executed on September 28, 1915. The trial by jury in the Supreme Judicial Court
1. There were seven exceptions relating to the admission of evidence. The first exception was to the refusal to exclude from the witness stand the attorney who drew up the will, on the ground that he had made the opening statement to the jury. While such a practice by an attorney is not to be commended, it was within the discretion of the single justice to permit the witness to testify. Potter v. Ware, 1 Cush. 519, 523. The second exception was as follows: One of the attesting witnesses was asked, “Have you an opinion as to whether Mrs. Whitmore was of sound and disposing mind and memory on the twenty-eighth of September formed since that date and formed on things you then and there saw and heard?” She answered, “Yes, after talking with other nurses;” but that she did not know Mrs. "Whitmore, and had no opinion based solely upon what she observed at the time the will was signed. The witness then was asked her opinion, but on objection it was excluded. Such opinion of the testator’s capacity formed subsequently to the time of executing the will was not admissible. Williams v. Spencer, 150 Mass. 346. Exceptions three, four, five, six and seven are to the exclusion of offers of evidence in the nature of declarations by the testatrix to show the affection or dislike of the testatrix for certain relatives, her interest in her church and in the Daughters of the Revolution. "While some of this evidence, standing alone, might tend to throw light on the mental condition of the testatrix, we cannot say that there was error in its exclusion. Much must be left to the discretion of the presiding judge in excluding declarations of the testatrix that are remote in time, trivial in importance or merely cumulative; and the bill of exceptions does not purport to contain all the material evidence heard during the four days trial. Besides, it was admitted by the proponents in the presence of the jury that the testatrix had an extreme affection for her sister Mrs. Capron, who was not a contestant.
2. Exceptions numbered eight to eighteen inclusive are to the refusal to give certain instructions requested by the contestants. The eighth selected and stated in argumentative form a part of the evidence relative to the attorney who wrote the-will. The
The eleventh and twelfth requests expressly, and the fourteenth inferentially, called attention to the confidential relation of patient and physician existing between the testatrix and Dr. Silas P. Holbrook, husband of the principal beneficiary under the will. There was evidence that he was her attending physician before she went to the hospital; and that he consulted with the hospital physician and visited the testatrix while she was an inmate. Although the contestants were not entitled to instructions in the exact form proposed, they were entitled to have the law on this subject stated to the jury, in view of the facts disclosed as to the physician’s conduct and interest. The mere existence of such confidential relation would not as matter of law prevent the physician, much less his wife, from being the recipient of the bounty of the testatrix, and the jury might find that the provision made by the testatrix in favor of her sister Mrs. Holbrook was not induced by any influence exerted by Dr. Holbrook. Nevertheless the contestants were entitled to have the jury instructed as to the jealousy with which the law views transactions of this kind between physician and patient, especially when the patient is enfeebled by disease. Woodbury v. Woodbury, 141 Mass. 329. Phillips v. Chase, 203 Mass. 556. Butler v. Gleason, 214 Mass. 248. As no instructions were given to the jury on this subject matter, the exceptions to the refusal to give the requests eleven and twelve, in form or substance, must be sustained.
3. The nineteenth exception to a portion of the charge is overruled. If the contestants desired instructions with reference to the conduct of Mr. Brady on the theory that he was acting as the agent of Dr. or Mrs. Holbrook, they should have made written requests therefor.
4. After the justice who presided over the trial had gone to his home, the Chief Justice, who was not present at the trial, at the request of the jury, gave them further instructions, and an exception was taken to this action. Without intimating that there is any merit in the objection, it cannot be considered on this bill of exceptions. The Chief Justice was presiding at the trial when this exception was taken; and a bill of exceptions setting it forth could be allowed by him alone, except in circumstances not here existing. R. L. c. 173, § 108.
As already appears, all the exceptions taken at the trial must be overruled except those to the refusal to give in form or substance the eleventh or twelfth requests for instructions. In consequence of that refusal the entry must be
Exceptions sustained.