243 Mass. 226 | Mass. | 1922
Fannie Boyd Ferguson executed the instrument offered for probate as her last will on September 20,1920, and died of cerebral hemorrhage September 27,1920, at the age of sixty-two years. Margaret Lockhart, the petitioner, was named in the will as executrix and as residuary legatee.
The Probate Court for the County of Bristol framed and sent to the Superior Court for trial the following issues: (1) “Was the instrument now propounded for probate as the last will of Fannie Boyd Ferguson, late of Fall River in said County of Bristol, deceased, executed according to law?” (2) “Was said Fannie Boyd Ferguson of sound mind at the time of the execution of the instrument which is now propounded as her last will?” (3) “Was the instrument propounded for probate as the last will of said Fannie Boyd Ferguson procured to be made by fraud or undue influence of Alexander Lockhart and Margaret J. Lockhart, or either of them, exercised upon said Fannie Boyd Ferguson? ” At the trial of the issues before a jury the first issue was answered in the affirmative; the second in the negative and the third in the negative. At the close of the evidence the petitioner asked the court to direct a verdict for the petitioner on the second issue, in the following language: "That upon all the evidence the jury must answer the second issue in the affirmative.” The court refused to direct a verdict as requested and the petitioner duly excepted. “ The court charged the jury fully and correctly on the law in the case.”
The exception to the refusal to direct an affirmative answer to the second issue must be overruled. The petitioner had the burden of establishing by a fair preponderance of the evidence that the testatrix was of sound mind when she executed the will; and the jury passing upon the credibility of the witnesses could give such weight to the evidence offered in support of and against that issue as to them seemed appropriate under the instructions of the court. It is plain in this case as in the large majority of cases that it could not be ruled as matter of law that the burden of proof depending
The petitioner next contends that the evidence did not warrant as matter of law the finding of the judge that a physician who testified for the respondents was qualified to testify as an expert on mental and nervous diseases. There was evidence that this physician was a specialist in internal medicines and in nerves, had practised in mental diseases since 1913, was a graduate of the Harvard Medical School, had been in the neurological clinic of the Carney Hospital for sixteen months, and had been connected as a neurologist with St. Anne’s Hospital in Fall River and the Fall River City Hospital. There was further evidence of qualification. It is plain it cannot be found by this court that the judge was clearly wrong in his decision upon the preliminary question of the qualification of the witness; the exception thereto must be overruled. Barker v. United States Fidelity & Guaranty Co. 228 Mass. 421. Cook v. Fall River, 239 Mass. 90. Old Colony Trust Co. v. Di Cola, 233 Mass. 119.
The petitioner further excepted to the question of the respondents to the witness: "Are you able to say whether six days before she died . . . this woman was of sound and disposing mind?” and to the answer of the expert witness thereto: “In my opinion . . . this woman was not of sound and disposing mind.” In support of this exception the petitioner argues that the answer to the question whether the witness “was of . . . disposing mind” includes necessarily a conclusion of mixed law and fact, which was a question for the jury under the instructions of the judge as to what a disposing mind is. It is clear in our practice that the term disposing mind is used synonymously with sound mind. But the admissibility of the question in the form put to the witness was decided affirmatively by this court in Hathorn v. King, 8 Mass. 371, against the objection that “the examination proposed would
The petitioner further claims an exception was taken to the testimony of a witness that the petitioner made statements which tended to show the incapacity of the testatrix to make a will. We are of opinion the exception was not saved. The question was asked and the answer given without objection, and the exception was taken during a discussion which followed between court and counsel. Moreover the same testimony in substance was later given by another witness, without objection or exception being taken to it.
It follows that the entry must be
Exceptions overruled.