| Mich. | Feb 26, 1896
(after stating the facts). The admission of this evidence is the sole allegation of error. The proponents seek to sustain it upon the theory that it was not aimed at the testator’s capacity, but at the competency of the witness to give his opinion, or, in other words, for the purpose of ascertaining the witness’ idea of mental competency. They also insist that the same rule of cross-examination applies to non-professional and non-expert, as to professional and expert, witnesses. They cite in their brief several cases from the courts of New York, Indiana, California, and Wisconsin. In all the cases cited, the question arose upon the testimony of professional expert witnesses. No case cited involves this question. The case of Rambler v. Tryon, 7 Serg. & R. 90, cited by the contestant, is directly in point, and holds such testimony incompetent. While the question has not been directly before this court, the case of Rice v. Rice, 50 Mich. 448, is of some import. Similar questions were propounded to non-expert witnesses upon the direct examinations, and were held incompetent. In the present case, while the question arose upon the redirect examination, yet, practically, it was cross-examination, and must be so regarded under the authority of Kempsey v. McGinniss, 21 Mich. 148, wherein it was held:
“ In this particular class of cases, and upon the question of mental soundness or unsoundness, after a prima facie case has been established by the proponents, the case, for all purposes connected with the order of proof upon that question, stands the same as if the burden of proof throughout rested upon the contestants to show mental incapacity.”
The firmly-established rule in this State is that non-experts and non-professionals, before they can give any opinion upon the incompetency of the testator, must state
The question propounded to Mr. Brooks involved conditions and supposed facts of which he knew nothing. It was a hypothetical question, and we find no authority to sustain its admissibility. On the cross-examination of experts, a broad latitude is allowed, and some cases hold that it is not necessarily confined to the facts in evidence. Hnderh. Ev. § 188, and authorities there cited. The ■opinions of laymen are limited to the facts and reasons ■derived from actual observation. Their opinions based thereon are only admissible because the courts have recognized the difficulty in the ability of witnesses to describe to the jury all the appearances and conditions which enter into their opinions. Subscribing witnesses have generally been held competent to testify upon the mental condition of the testator, without even stating the facts upon which their opinions are based. But many early cases held that the opinions of laymen, aside from subscribing witnesses, were incompetent, and there is much force in their reasoning. Rogers, in his work on Expert Testimony (section 67), states the consensus of authority as follows:
“The result has been that many of the earlier cases have been overruled, and the principle has come to be -generally recognized that non-professional witnesses may give their opinions as to sanity, as a result of their personal observation of the person whose mental condition is in question, after first stating the facts which they have observed.”
He cites a large list of authorities. The courts in New York and Massachusetts still exclude such opinions. Rog. Exp. Test. § 67, pp. 158, 159, where the decisions in those States will be found cited. We see no sound sense or reason in holding that the opinions of laymen
It follows that the judgment must be reversed, and a new trial ordered.