Macafee v. Higgins, 31 App. D.C. 355

Macafee v. Higgins

31 App. D.C. 355 | D.C. Cir. | 1908

Mr. Justice Robb

delivered the opinion of the Court:

Several specifications of error have been assigned, but only two of these relate to that of mental capacity. We will first consider these two assignments.

A witness named William J. Brooks testified by deposition that he was formerly appointment clerk in the Pension Bureau and assistant chief clerk in that office from 1897 to 1903, and had known the testator for twenty years; that, after 1897, he saw the testator almost daily, and from that time observed his physical weakness; that, from frequent conversations with testator, witness noticed his memory was failing, and that he could hot center his mind upon any subject of conversation; and that “his mental and physical condition in July, 1900, from observation and conversation, had gotten decidedly worse.” Thereupon witness was asked from what he observed of the testator “would he say that in July, 1900, he was capable and was of sufficient mental capacity to understand and execute a valid deed or contract.” To this objection was interposed, which being overruled, an exception was noted. It is here contended by appellant that the court erred in permitting the witness to testify as to his opinion of testator’s capacity to execute a deed or contract. Inasmuch as the testimony of the witness fully disclosed his means of knowledge as to the mental condition of the testator and his reasons for reaching the conclusion stated, we do not think it was reversible error for the court to permit an answer to this question. The witness was not a lawyer, and it is not probable that the jury attached greater weight to his answer than it would had he stated that in his opinion the testator was of unsound mind at the time of the execution of the will.

The second assignment of error relating to the issue of testamentary capacity challenges the action of the trial court in refusing to direct the jury to disregard the above opinion of the witness Brooks as to the mental condition of the testator, because, as appellant contends, it was based partly upon hearsay testimony. As above stated, the testimony of this witness was taken by deposition. During the taking of such testimony the *361witness stated that about 1898 the office force was reduced and Larcombe was among the number recommended for dismissal; that witness protested “notwithstanding he (Larcombe) was unable to render any efficient service, because of the good service he had rendered the Union as a telegrapher in Alabama during the War.” During his cross-examination by counsel for caveatee, the witness stated that his conclusion as to the mental capacity of the testator was not based entirely upon conversation with the testator, but upon the reports of the chief of his division, which constitute public records in the Pension Bureau, and which came to the witness in his official capacity as assistant chief clerk; and that his opinion was based on observation and conversation and Larcombe’s “record as a clerk in the Pension Office.”

There is no merit in this assignment. Section 1058 of the Code ([31 Stat. at L. 1354, chap. 854]) requires that objections to questions and answers must be noted at the time of taking a deposition, or within ten days after the return thereof. In this case no objection whatever was made until after the reading of the deposition to the jury. Moreover, the testimony shows that the witness was personally familiar with the standing of the testator in the office as to efficiency, which knowledge the witness was entitled to consider in reaching a conclusion on the question of mental capacity.

Inasmuch as practically all the direct testimony of the caveator related to the issue of testamentary capacity, which issue without error was submitted to the jury; and inasmuch as a careful examination of the record fails to disclose the improper admission of any testimony on the other issues which might have tended to the prejudice of the caveatee before the jury, — we find it unnecessary to consider the assignments of error relating to those issues. “The verdict on the issue of testamentary capacity being sufficient to support the judgment, it would not avail appellants if error could be shown on the other.” Morgan v. Adams, 29 App. D. C. 198.

Finding no error requiring the verdict on the issue of testamentary capacity to be set aside and a new trial of that issue ordered, the judgment is affirmed, with costs. Affirmed.