Potter v. Baldwin, 133 Mass. 427

Potter v. Baldwin

133 Mass. 427 | Mass. | 1882

Devens, J.

The evidence of conversations between the testator and his son and son’s wife in 1872, wherein he said that he was so under the influence of Francelia S. Lane that he could not resist her when he was in her presence, in connection with *429similar expressions of feeling up to the date of the will, was properly admitted for the purpose of showing the state of the testator’s feeling towards her. Shailer v. Bumstead, 99 Mass. 112. Lewis v. Mason, 109 Mass. 169. They strongly resemble those received in May v. Bradlee, 127 Mass. 414, where the question was whether a testator was induced by undue influence to revoke a will, to the effect that a certain person (through whose influence it was contended that the will was revoked) told him to erase his name, and that he felt that he had to do as this person said.

Upon similar grounds, the evidence of a conversation the night before he died, in which he stated that he wished “ to see his son Joseph, and that he did not know but that he had been deceived,” was admissible to show his state of feeling towards his son and Francelia S. Lane. The wish to see his son might well be considered as showing a kindly feeling toward him. Lewis v. Mason, ubi supra. While the declaration did not state by whom he felt that he might have been deceived, yet, when taken in connection with the evidence appearing in the case in regard to Mrs. Lane, it might have been found by the jury to refer to her and to exhibit his then state of feeling towards her.

In proving the existence of that undue influence over a testator, by which his will may be avoided, two things are necessarily to be shown, the extraneous words, acts or circumstances by which it has been exerted, and the effect thereby produced upon the mind of the testator, the former of which cannot, the latter of which may, be shown by his declarations. The difference is certainly obvious between receiving the declarations of a testator to prove an external fact, such as duress, fraud or importunate solicitation, and as evidence merely of his mental condition. In the one case, it is hearsay evidence, and open to all the objections applicable to that species of evidence, while in the other it is appropriate, and directly bears upon the issue to be tried. Waterman v. Whitney, 1 Kernan, 157, 165.

For the purpose for which it was admitted, the evidence was therefore competent. It is not to be inferred that it was applied by the jury to any other purpose. If these conversations were used at the trial by the counsel for the appellant in his argument for the purpose of showing undue influence and deception by *430Francelia S. Lane, 'such use was certainly improper. But the counsel for the appellee asked no instructions as to the use and effect of this evidence, nor did he, so far as the bill of exceptions shows, call the attention of the presiding judge to the matter. He cannot now object that it was not limited by the presiding judge in his instructions to the only purpose for which it was competent. If evidence be admissible for any purpose, its admission cannot be made a ground of exception, unless it be shown that the judge refused to limit it to that purpose, and permitted it to be used for a purpose for which it was not competent, against the objection of the excepting party. Howe v. Ray, 113 Mass. 88. Packer v. Lockman, 115 Mass. 72. As the evidence had been admitted for a purpose we deem to have been competent, and as no instruction was requested or given limiting its effect to that purpose, we cannot infer otherwise than that both the counsel for the appellee and presiding judge deemed that the purpose of its admission had been stated with sufficient clearness at the time it was received, and that, notwithstanding the argument of the .counsel for the appellant, there was no danger that the jury would be misled in its application. Had the counsel for the appellee thought differently, he certainly should have called the attention of the presiding judge to the matter. Hot having done so, he has now no just ground of complaint. Hxceptions overruled.