| Conn. | Mar 15, 1877
The appellant sought to establish a document purporting to be a will, as the last will and testament of Mary Morse, deceased. The appellees resisted it on the ground that the deceased had not the mental capacity to make a will, and on the further ground that it was made under the effect of undue influence.
The appellant, to whom all the property was given by the supposed will, is a nephew of the deceased, and the appellees are her brothers and heirs at law.
On the trial, for the purpose of showing an alienated state of feeling between the deceased and her brothers, growing out of questions respecting her share in their father’s estate, the appellant offered in evidence divers declarations of the deceased, made at different times, as to several or all of them, expressing her dislike, and her intention that they should not have any of her property. Connected with testimony of this description were the depositions of William Mills and Olive P. Segur, who, among other things, deposed to certain declarations of the deceased respecting the character of the wife of one of her brothers—that it was bad, and that she was a lewd, lascivious woman. At a subsequent stage of the trial, and after the appellant had closed his testimony, the appellees, for the purpose of showing that the deceased was laboring under a delusion, offered testimony to prove that the reputation of the woman in question was good, and that she was virtuous and respectable. To this testimony the appellant objected and the court excluded it.
We are unable to see any good reason why this testimony should not have been received. The appellant had introduced evidence to prove that the deceased had asserted that the lady in question was a woman of bad character, and that she was in fact a lewd and lascivious woman. This was offered for the purpose of showing an alienated state of feeling between the deceased and her brothers, and to account for her giving all her estate to her nephew. The rejected testimony was offered by the appellees, not for the purpose of contradicting this evidence, but for the purpose of adopting it as their own, and using it in support of their claim of mental incapacity.
The fact that the counsel fob the appellees substantially abandoned Die claim of want of capacity, at the close of the trial, is not a-sufficient reason for refusing a new trial. There is no ground for believing that counsel thereby intended to waive their right to except to the ruling which had previously been made. Indeed it is quite possible that the ruling induced or compelled counsel to abandon the Claim.
The appellees proved the declarations of the deceased tending to show that Ashley Mills, the father of the appellant, had influenced her against her will to change her residence, and had prevented her return by threats and violent language. To meet this the appellant offered Ashley Mills as a witness to prove that he never compelled or in any way induced the -deceased tó move into his house, and never in any way or manner sought to prevent her from returning to the house from which she came. To the admission of this evidence the appellees objected, but the-court admitted it. Assuming that •the-evidence offered by the appellees was admissible, we think the evidence offered -in reply was properly received. The appellees had Offered the declarations of the deceased for the .purpose of showing "that she was subject to the influence and 'control of Mills; and his testimony was responsive to that.
A new trial must be ‘granted -on the first point -considered.
In this,ppinion the other judges concurred.