The case turns on the twelfth assignment of error. The three daughters of the deceased, parties interested in tbe event, testified thаt their father did not have sufficient mental capacity to make a will when tbe paper-writings propounded as such were еxecuted. They then related a number of personal transactions and communications bad with the deceased, upon whiсh they based their opinions.
Was tbe testimony relating to these transactions and communications competent as substantive evidence?
It has been held that, in a proceeding of this kind, both propounders and caveators are “parties” within tbe meаning and spirit of O. S., 1795, which disqualifies a party or person interested in tbe event, or a person under whom such party or person interеsted derives bis interest,
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from testifying as a witness in bis own bebalf against tbe executor, administrator or survivor of a deceased persоn, concerning a personal transaction or communication between tbe witness and tbe deceased, exceрt where tbe executor, administrator or survivor, is examined in bis own bebalf, or tbe testimony of tbe deceased person is given in evidеnce concerning tbe same transaction or communication.
In
re
Mann,
The disqualification of sucb witnesses to give evidence сoncerning personal transactions or communications bad witb a decedent, rests not merely upon the ground “that the deаd man cannot bave a fair showing, but upon the broader and more practical ground that the other party to the action has no chance by the oath of the relevant witness to reply to the oath of the party to the action.”
McCanless v. Reynolds,
Unless both pаrties can be beard, it is better to bear neither, because it not only has the appearance of unfairness, but, where оnly one participant can speak, it affords an easy opportunity, and a temptation perhaps, to commit рerjury.
Bissett v. Bailey,
“If self tbe wavering balance shake,
It’s rarely right adjusted.” — Burns, Epistle to a Young Friend.
It is conceded that the testimony of parties and persons interested in the event, сoncerning personal transactions or communications bad with a decedent, is not within the inhibition of C. S., 1795, when such testimony is offered to show the basis of the opinions of the witnesses relative to the mental capacity of the deceased.
In re Hinton,
It is otherwise on the issue of undue influence.
Hathaway v. Hathaway,
Evidence concerning personal transactions or communications with a decedent is not prohibited by the statute, but only certain witnesses from giving it.
In re Mann, supra; Erwin v. Fillenwarth, supra.
Indeed, such evidence may be the best and most pertinent to the .issue.
In re Will of Stocks, supra.
“The declarations are not received to show the truth of the things declared, but as evidence of a disordered intellect, of which they are the outward manifestations. . . . The admissibility of the witness’ opinion, resting, as it necessarily must, upon past opportunities of observing one’s conduct, requires, in оrder to a correct estimate of the value of the opinion, an inquiry into the facts and circumstances from which it has beеn formed. There seems to be no sufficient reason for receiving the opinion and excluding proof of the facts upon which it is founded.”
McLeary v. Norment,
It has likewise been held in this jurisdiction that a witness, expert or other, who has had opportunity of knowing and observing the character of a person, whose sanity or mental capacity is assailed or brought in question, may not only depose to the facts he knows, but may also give in evidence his opinion or belief as to the sanity or insanity of the person under review, founded upon such knowledge and observation, and it is for the jurors to ascribe to his testimony that weight and credibility which the intelligence of the witness, his means of knowledge and observation, and all the circumstances attending his testimony, may in their judgment deserve.
Clary v. Clary,
Anyone who has observed another, or conversed with him, or had dealings with him, and a reasonable opportunity, based thereon, of form■ing an opinion, sаtisfactory to himself, as to the mental condition of such pierson, is piermitted to give his opinion in evidence upion the issue of mental capacity, although the witness be not a psychiatrist or expert in mental disorders.
White v. Hines,
It will be observed tbat the exception is not to the competency of the evidence, wbicb was admitted, but to the limitation of its use as contained in the court’s cbargе. While the learned judge may bave been infelicitous in the use of the word “substantive,” nevertheless, interpreting the instruction in the light of the whоle cbarge, as we are required to do, it would seem tbat what be meant to say, and did say, within the understanding of the jury, was tbat personаl transactions or communications bad between parties or persons interested in the event and the deceased, were not offered by such witnesses to prove the truth of such transactions or communications, as tending within themselves to fix liability upon thе estate, but as evidence of the mental condition of the deceased and in support of the witness’ opinion concerning it. As thus understood, no barm is perceived as having come to the caveators. the verdict and judgment will be upheld.
No error.