56 A. 459 | N.H. | 1903
Lead Opinion
1. The testator's statements as to his last wife and her relatives were excluded for remoteness, as they well might be, and their exclusion presents nothing for our consideration.
2. Upon the issue whether the testator was unduly influenced by his wife to execute the will in question, evidence of the quality of his mind, with respect to its susceptibility or non-susceptibility to the influence of others, was competent. Patten v. Cilley,
3. The adverse party being an administrator who had not elected to testify, the appellant was properly not permitted to testify that the testator "was a man who could be easily influenced." P. S., c. 224, s. 16.
It is urged that the statutory prohibition relates only to "facts which occurred in the lifetime of the deceased," and that the quality of the testator's mind, whether firm and decided, or irresolute and easily persuaded to conform to the wishes of others, was not a fact "which occurred in the lifetime of the deceased," within the meaning of the statute, but only an attribute of character, concerning *252 which the appellant might have testified consistently with the letter and spirit of the law. The argument would have force were it not that an opinion as to the quality of another's mind cannot exist independently of facts. Something must have transpired to afford a basis for opinion. If the appellant had been permitted to testify that the testator was a man who could be easily influenced, it would have been the right of the administrator to have him tell the facts upon which he based his opinion; the testator, if alive, might have denied the facts altogether, or so explained them that they would have appeared entirely consistent with firmness of character; being dead and unable to either deny or explain, every reason for the statute would seem to forbid the appellant testifying as proposed; and "facts which occurred in the lifetime of the deceased" being necessarily involved in the testimony offered, it was prohibited by the letter as well as the spirit of the statute.
4. "The order of proceeding at the trial was adopted because justice and convenience required it," and presents no ground for reversal. Boardman v. Woodman,
5. The conversations between one of the appellee's witnesses and the testator, on the day of the latter's death, were competent as bearing on the question of his sanity.
6. The administrator, the only party who could object to the heirs of Caltha R. Whitcomb testifying, did not object. They were, therefore, properly permitted to testify, notwithstanding the objection of the appellant. Marcy v. Amazeen,
7. The fact that the heirs of Caltha R. Whitcomb testified did not entitle the appellant to testify in rebuttal, as a matter of legal right. By the express terms of the statute, it is only when the "administrator . . . elects so to testify" that the adverse party may testify, as of legal right. P. S., c. 224, s. 16. Whether the appellant should have been permitted to testify in rebuttal as a matter of justice, pursuant to the authority conferred upon the court by section 17, chapter 224, Public Statutes, is a question the record does not present for our consideration.
The remaining exceptions by the appellant are plainly untenable and require no consideration.
Exceptions overruled.
All concurred.
After the filing of the foregoing opinion on January 7, 1903, the *253 appellant moved for a rehearing and obtained an amendment to the reserved case, from which it appeared that the opinion of the witness as to the influence of Caltha over the testator was excluded because it was incompetent as matter of law.
Addendum
We are satisfied by the amendment filed since the motion for rehearing that the evidence offered by the appellants, that, "during the period of his [the testator's] marriage to Caltha he was much under her influence," was excluded by the superior court upon the ground that the evidence was incompetent as matter of law, and not because the witness who was to swear to it was found to be without the requisite qualifications to testify upon the subject. In this view, the exclusion of the evidence, according to the law of this jurisdiction, as shown by the authorities cited in the former opinion, was error. But it is urged that the error was not prejudicial, because if the evidence had not been ruled out as matter of law, it should have been ruled out as matter of discretion. This is not so clear; but in any event the question of discretion is not for our determination. Patten v. Cilley,
New trial granted.
All concurred. *254
