Robinson v. Adams

| Me. | Jul 1, 1870

Kent, J.

This is an appeal from the decree of the probate court, allowing and probating the instruments purporting to be the last will and testament and codicil of Mary W. Green, widow of Gardner Green, late of Topsliam, in this county, deceased.

The sole heir at law, the appellant, contests the probate of the will and codicil. The will and codicil, instead of giving the estate directly to her, absolutely and in fee, devises all the property and estate, after payment of debts and expenses, to trustees, in trust for the uses specified. The substance of the provisions as to the trusts designated is — that the daughter, the appellant, shall have-five hundred dollars per annum, out of the income of the estate, during the life of her husband, the residue of the income to be invested by the trustees. If the daughter shall survive her husband, then, after his decease, she is to have the whole of the income of the estate during her lifetime, to her ■ own exclusive use and benefit. After her decease the whole income is to be paid to her surviving child or children, and to the survivor of them during •life, or during minority what the trustees may deem necessary for their thorough and suitable education; and, if necessary, they are to appropriate a part of the property, beside the income, for their support and education, provided the father is not of sufficient pecuniary ability to support and maintain them himself. The will then proceeds to make provisions by which the trust is to be continued, for the benefit of grand-children of the daughter, if any, and it is not to be terminated until the arrival of the youngest grand-child at the age of twentv-one years, when the whole estate, real and personal, is to go to the grand-child or grand-children, absolutely free •of the trust, to them and their heirs forever.

In case the testatrix’s daughter dies leaving no lineal descendants surviving her, the property is to be divided among the children of the brother and sister of the testatrix, to whom it is also to go in case of the death of all the cestuis que trust before the youngest attains the age of twenty-one years.

In the trial of this case, certain questions were put in issue, under the direction of the court, arising under the pleas filed and joined. There wpre three separate pleas; in substance,.these : — - I. Denial of the due execution of the will; II. That the testatrix was not of sound mind at the time of the supposed execution of the will; III. That she was unduly influenced in the making of the will by various persons “and that the instruments (will and codicil) were not the fruit of her own mind and will, uncontrolled by other persons and influences.” There was no brief statement specifying or limiting the points presented by the pleas.

The executors introduced evidence to prove the legal execution of the will, and the soundness of the mind of the testatrix. The only questions raised under this part of the case had relation to the admission of certain evidence, and the instructions given as to the burden of proof and as to preponderance of evidence. These will be considered hereafter.

The appellant then offered a large amount of testimony under the second and third pleas, and to rebut the evidence as to soundness of mind, and to establish the fact of undue influence. This testimony took a wide range, and had relation to the history of the domestic relations between the daughter (the appellant) and the mother (the testatrix) and the husband of the daughter, including acts, visits, declarations, letters, evincing more or less of affection for her daughter and of aversion and dislike to her' son-in-law, and persistent determination in such dislike, and in a purpose to prevent the daughter’s husband from receiving anything from her estate. The same kind of testimony was introduced to show undue influence on the part of living persons and from what she believed to- be the spirit of her deceased husband, communicating with her through mediums. Under these pleas also there was a large amount of evidence, oral and written, to show that the testatrix was a firm believer in what are termed spiritual communications, between the living and the dead, generally believed by the class of people known as modern spiritualists.

The appellees (the executors) then introduced counter evidence on the same general topics, and such as they deemed pertinent to sustain their proposition of testamentary capacity and to refute the allegations of undue influence.

On this body of evidence it became the duty of the presiding judge to give instructions to the jury, and to some of these instructions, and to some denials of instructions requested, the appellant excepts.

We will first consider the exceptions to the charge.

The judge first considered the questions of soundness of mind, and subsequently as a distinct matter, the question of undue influence, placing them before the jury separately.

I. Sanity. The presiding judge stated to the jury that the statute makes soundness of mind a requisite qualification in a testator ; hence, that it was incumbent on those who set up the will to establish this fact, and that burden does not shift; that the rule of preponderance of testimony in civil cases applies — not the rule of the criminal law. He said that “a person of sound mind” were the words of the statute; that a sound mind was a sane mind; that sanity meant health, and that, therefore, a sane mind was a healthy mind. When a mind, not imbecile, acts healthy it may be called sound. But if a testator acts under a delusion which is the result of a disordered mind, amounting to insanity, and this delusion influences the testator in making his will, or any part of it, it will be sufficient to avoid it, on the ground of want of a sound mind when he made it.

The judge, — after stating the fact that there were different degrees of insanity, and alluding to the cases of general insanity, in which all or most of the faculties and affections are deranged, so that this class are commonly said to be lunatics, entirely crazy, sometimes raving maniacs and sometimes quieter, yet with most of their powers of mind derange'd, and the whole mind in a state-of chaos and confusion, — said he did not deem it necessary to discuss that kind of insanity as it was not contended that this testatrix was in that condition of entire lunacy or madness. He would, only say that if she was in that condition, then she was incapable of making a will, whether it could be established or not that any - of such insane delusions operated upon her to make the will, or any part of it. But he did not understand that it was contended - in this case that the testatrix was in that condition of entire lunacy when she made the will and codicil, but it is contended that her mind had become deranged from a healthy state and that she entertained insane delusions, within the rule before given. He then. told the jury that it was for them to decide whether she did or did not; and that if Mrs. Green, at the time of executing her will and codicil, or either of them, was laboring under a delusion or delusions amounting to insanity or monomania, which is insanity on a particular subject, or under insanity generally; and any of these insane delusions operated upon or influenced her in making the will as it was made, then she was not of the sound mind required by law.

The substance of this seems to be that the appellant contended that the evidence was sufficient to prove delusions, existing in her mind, such as would invalidate the will. The court ruled that the delusions must be such as amounted to insane delusions.

The propositions of the counsel, presented as requests for instructions, indicate clearly the specific points and grounds in relation to which it was "claimed that these delusions existed, and to which the rulings were applied. The first requested instruction was this: that if Mrs. Green believed that the spirit of her deceased husband directed or dictated the will and codicil and acted under that belief, they are void.

The second was: That if she entertained a groundless and causeless suspicion of Mr. Kobinson’s character, and that he was exposed to the control of evil spirits, and made the will and codicil under that influence, they are void.

The third was: That if she disliked Mr. Kobinson, and believed that ho had a supernatural power over his wife — a power through the aid of evil ‘spirits — and was influenced to make her will and codicil as_she did by this belief, then they are void.

The fourth was: That the will and codicil must be wholly the offspring of her own mind uninfluenced by any delusion.

As to the first requested instruction, the judge said, as appears by the report: “I give you that. I have already given it to you in substance.” The judge evidently understood the request as bearing on the "other point, of undue influence, concerning which the fifth request was presented. The judge had charged fully that if she believed that the spirit of her deceased husband direc - ted or dictated the will, it would be void on the ground of undue influence, as will more fully appear when we come to consider that point of undue influence. The counsel, in his argument on this hearing, regards this as in substance a request to instruct that if such belief had any influence, although short of direction and dictation, it would invalidate the will. Or perhaps, in short, that a belief in spiritual communication was in itself an insane delusion, if it had any influence on the mind of the testatrix in making her will. If the judge had so understood the request, he would, doubtless, in consonance with his whole charge, have given this as he gave the second, third and fourth requests (above rehited) with the qualification in each, that if such matters amounted to insane delusion, as explained in the charge, and influenced her in making her will, the will would be void. The requests were, in effect, that the judge should rule as matter of law, that these specified matters, under each head, did establish such delusion as would render the will void. The judge did not thus take the question from the jury, but told them that it was for them to determine whether there was such a state of mind as came within the rules and definitions given to them. This was stated, as before recited, in the first part of his charge; and after calling the attention of the jury to the points made, and the facts proved, and the evidence bearing on each and all of them, he concluded his charge on this part of the case by saying: “The point is this: did these things, these beliefs, these matters, with other influences, no matter what, create in her mind insane delusions ? Did she act on them in the making of her will, or .any item of it? If so, then you will be justified in saying she was not of sound mind.” We think it clear that the final determination as to the testamentary soundness was with the jury after the definitions and rulings of the couit as to the legal questions had been given to them.’

Was there any substantial or material error in these rulings and definitions?

The charge was long and is reported by the stenographer in-full and doubtless correctly. But it necessarily presents many remarks and illustrations and repetitions which render it somewhat difficult to reduce the whole to a few simple propositions. Indeed, it is very difficult to comprehend the exact import of the charge in all its bearings without a perusal of the whole as given; but to afford this would extend this opinion unreasonably; a brief statement of the points must, therefore, suffice.

After stating that if a testator acts under a delusion, the will which is the result of a disordered mind is invalid, (as before set forth) the judge called the attention of the jury to the point that the delusion must be the act of á disordered mind, and that the term delusion, as applicable to insanity, is not a mere mistake of a fact, or the being misled by false testimony or statements to believe that a fact exists where it does not exist. This is sometimes termed delusion in common conversation. So some men will believe on much less evidence than others that a fact exists, particularly in matters not tangible to the senses, but resting in mental or spiritual theories or beliefs. A false assumption does not invalidate, unless it is an insane delusion.

The principal objection now made to the charge, under the general objection to it as a whole, relates to the definition given of an insane delusion. The judge read from Bouvier’s Law Dictionary this definition: “A delusion is a diseased state of the mind in which persons believe things to exist, which exist only, or to the degree they are conceived of only, in their own imaginations, with the persuasion so fixed and firm that neither evidence nor argument can convince them to the contrary.”

The judge then added: “But insane delusion as a fact may. be where the supposed fact is the coinage of the brain, without evidence, a figment of the imagination.” To this addition the counsel excepts, assuming that this was a definition extending and including all cases of insane delusion. But it was simply a definition applicable to one class of delusions and not intended to exclude all other cases; and even this was not stated absolutely and was- confined to delusion as of a fact. The judge then explained to the jury the difference between a delusion as to the existence of a fact and" one where the fact is rightly apprehended, but the reasoning upon the fact and the conclusions drawn from the existing fact are’ entirely wild and absurd, showing that the insanity is in the mental powers and operations.

Coming to the case before them, the judge asked “if a delusion existed in any form, was it an insane delusion ?” He then gave to the jury a definition furnished by the counsel for the appellant, as follows: “In a legal point of view, insanity is where a person believes something to exist, which not only does not exist, but of which he has no evidence sufficient to satisfy any healthy mind, and he acts upon it, reasons upon it, and holds it as a reality.” This was given as an instruction, the judge adding this: “That may be an insane delusion ; that is to say, where it is so palpable that he believes it without reason; any reason sufficient to satisfy any healthy mind; and he acts upon it, when it cannot possibly be true ; that is an insane delusion.”

■ Now this additional explanation is strongly objected to by counsel as extending the rule given in the book to the injury of his client. But the rule starts with the absolute assertion, or assumption, as the basis of the whole rule of law, of the fact that the “something which the person believes to exist” does not exist. It requires, to start with, the absolute non-existence of the fact believed to exist, and this, of course, must be established conclusively, before any conclusion of insanity can be drawn. It would seem to be too plain to need any argument, that before an insane delusion as to a fact, could be predicated or established; the non-existence of the fact must be, in some mode, put beyond doubt. The judge in another part of his charge said : “Before any thing (in law) is a delusion, the non-existence of it must first be established.”

The qualification, as given, was rather to relax the rule in favor of the positions of the appellant than to make it more stringent. It evidently had particular reference to the belief in spiritual and supernatural influences and communications. By the literal meaning of the rule given in the book, it must first be established absolutely, as a demonstrated fact, that the matter or fact, about which the delusion was said to exist, had no existence. But, clearly, it would be impossible to prove that, in the present instance, by direct testimony. The judge, therefore, qualified the rule, by allowing the jury to find that it might be an insane delusion, if the testatrix believed what could not possibly, be true, although no positive or direct evidence was or could be offered, to establish the falsehood of such spiritual beliefs. The jury might determine this point in favor of the proposition of insanity, on their own conviction of the impossibility of the truth of the facts on which the claimed delusion rested. We do not see how the appellant was injured by this qualification of his requested instruction by the presiding judge.

The jury were then directed to apply this test to all the facts in the case, as shown in the evidence. The principal difference between the requested instructions and those given, is in this : the requests asked for rulings that should declare, as matter of law, that certain facts and matters recited, were each in themselves, insane delusions, and rendered the will, for that cause, void ;■ the rulings given did not so declare, but required the jury to determine, after a full and fair consideration of all the evidence bearing on the question, whether the testatrix was under an insane delusion, within the rule given.

The court will not ordinarily withdraw the questions raised under the issues framed from the jury, where the very purpose of framing such issues, is to have the jury inform the court as to the truth of certain' allegations, as is the case where the Supreme Court of Probate is called upon to probate a will, and the due execution of it; or the soundness of mind of the testator is in* question. It is the duty of the court to give instructions on the* points of law, and to explain and illustrate them, but it will' not,, unless possibly in some cases where there can be no real question-of fact to be determined, undertake to direct the jury what their finding shall be. Even then it would be the more proper course to withdraw the issues from the jury, and for the court to act on* its own convictions, without the aid of a jury. There is no corn*mon law right to demand a trial by jury in cases of appeal from the probate court. It is only when, upon a hearing of such appeal “any question of fact occurs proper for a trial by jury, an issue may be formed for that purpose, under the direction of the court, and so tried.” It is true that if the requested instructions had been given, some questions of fact would have remained for the jury; but, substantially, the court would have, declared that she was not of sound mind.

. The grounds chiefly relied upon to show unsoundness of mind were the belief in spiritual communications, particularly with the spirit of her deceased husband, and her suspicions and beliefs as to her son-in-law, Mr. Robinson, touching his exposure to the control of evil spirits, and his possession of supernatural power over his wife, through the aid of evil spirits.

The judge did not rule that the belief in what are called spiritual communications or revelations, that is, that spirits do communicate with human beings through mediums, was ipso facto, and in itself, an insane delusion. Nor did he say peremptorily that it was. not; but he told the jury to consider how far that belief' showed delusion, under the rule before given them, and whether that belief was in itself an insane delusion.

The learned counsel for the appellant, has-denounced such belief' in very powerful and eloquent language, and calls upon the court ¡to deny-to it “a standing in court,” and to show its concurrence in ¡the denunciation of an English judge, who termed it “mischievous-.nonsense.,” with other like designations. -

And yet the good sense of the counsel realized that we were-.called to deal with this matter not theologically — or in one sense, ¡morally or scientifically — but legally, as bearing on the single-.point of insanity, or insane delusion. What our individual or-, .collective opinion as to the facts, truth, possibilities, or evidence-, ,or claims, of this so-called spiritualism, may be, has nothing to do -.with the questions before us. It is only as to the proved effect of' this belief on another person’s mind, that is-before us. Did this-belief unsettle her intellect, and make her of unsound mind, within the meaning of the statute ? Even if true, it might produce that effect, by a long continued, and exclusive and fanatical devotion to the thought. The judge so said in substance when he -stated to the jury, by way of illustration : “Now there are questions constantly arising in relation to mere speculative belief in abstract propositions of theology or law, or other matters, particularly in theology, spiritual truths. These mere speculative beliefs of abstract propositions you may think very absurd; you do not see how anybody could believe such things, such creeds or doctrines, yet others may Relieve them, and not be insane. They may rest so in a person’s mind, and work so in his intellect, may upset his mental powers generally, or partially, or topically, on particular points, so that he may become insane, arising from this very cause.”

He illustrated further, by the case of a man, who believed fully in the second coming of Christ, personally and bodily. This to many may seem a strange and unsustained faith. But would any one say it was an insane delusion ? But by constantly dwelling on this single idea, he comes to believe and to proclaim his belief, not merely that Christ will come again on earth, but that he himself is the very Christ that was to come, and to assert his official character with perfect assurance and sincerity. There the delusion would be, not in the original faith, but in the consequences that have worked out from it in his mind, finally upsetting his powers of reasoning, until we say that man has an insane delusion.

'The judge also stated further that in this case it was contended that the testatrix believed more than this simple proposition of the existence of spiritual communications; that she believed that she had the power to heal, and to some extent exercised it at home and on others; that she believed it was the same sort of power that was employed by Christ and the apostles; and, further, that she had various other imaginations and delusions, in one form or another. The judge then gave the rule before stated, telling the jury that all these matters were before them, and it was for them to say, in view of them all, whether singly or together they had brought her to the state of unsoundness of mind, by reason of insane delusion or illusions; and whether such delusions operated upon her in making this will.

Preliminary to this summing up and as included within it, attention had been called also to all the evidence touching the relations between the testatrix and her daughter and Mr. Robinson, and her beliefs and acts, and feelings and declarations, with the distinct instruction that “if the conditions in the will were made through dislike of Mr. Robinson, if that state of mind was a delusion and had reached the point of being an insane delusion, and it was for them, to determine whether it did or not, then it would invalidate the will.”

We do not perceive what valid objection can be made to the charge on this point of soundness, when it is examined in its full scope and fair meaning. Indeed, the counsel frankly admits in his very elaborate argument on all 'the points; “we do not contend that a mere speculative belief in spiritualism, if it is not acted upon, and has no influence over the testator, would render a person incompetent to make a will.”

This belief, then, per se, is confessedly not insanity or an insane delusion. Put the counsel does contend that “if the will was made under such an influence, or if such an influence had any effect upon the mind of the testator in making the will, it is invalid.”

But if the belief was not in itself an insane delusion, how could acting upon it sustain the plea of unsoundness of mind ? Or why should the judge rule, as matter of law, that acting upon a belief, confessedly not in itself incapacitating, invalidates the will ?

But it was contended that the proposition was correct as applied to the issue, charging undue influence. This leads us to the consideration of the rulings on this separate and distinct point. The instructions on this head started with the assumption that the jury failed to find such insane delusion as would invalidate the will. The court said : “It is contended that if there was sanity, and no general or specific delusion to a degree sufficient to invalidate the will, yet that such a dominion or influence was obtained by others over the testatrix as to prevent the exercise of her own judgment, will and wishes, and that the will was in fact not the expression of her own will and wishes and intentions, but was substantially the act of others, and not of herself.” The judge in substance, said that such influence, however exerted, would be undue, and would render the will made under it, void; that it must be such and so exercised, as in effect to destroy the freedom of the testatrix’s will, so as to render her act more the offspring of the will of others than her own, at least in some of the provisions of the will.

He said, “that a testator might receive the advice, opinions and arguments of others, and if after all such advice, requests or persuasions, however persisteutly, or however strongly urged, the testator is not controlled by them to the extent of surrendering his free agency, and yielding his own judgment or will, and so, not making his own will, but adopting for his own will, the will or wishes of others; .then there is no such undue influence as is required to be proved to avoid the will.”

There seems to be no exception to these rulings so far as they apply to living persons. The rule as given is according to the most approved authorities. Hut there remained the point, as to undue influence, connected with, the alleged spiritual communications. On this, the judge said: “The question arises, if she was of sound mind generally, and if no living person did unduly influence her, yet she may have been under the control and dictation of what she believed was the spirit of her deceased husband, communicating to her directly through a medium: and that to her it was a reality; and that her own will was subordinated to her husband’s will, and that will- was his and not hers. It is contended that this was a delusion, and an undue and improper influence. On this point I give you the same rule as before stated. If she did thus believe, and if she did have what she deemed direct communications on the subject of this will, and implicitly followed them, yielding her own will and judgment and exercising no free agency (as before explained) then it would not be her will, but another’s, ■ in the same manner as if actually dictated by a living person. But if she did thus believe, and had what she deemed her husband’s opinions, wishes or judgment, if she nevertheless acted her own will and her own judgment, as before explained, and did not abandon both to the supposed wishes and opinions of her husband, then it. would not be undue influence, although she might have had full faith in the supposed communications and have regarded them as her husband’s advice. I give you the same rule, in short, as I gave as to living persons.”

We have made these full extracts, in order to present distinctly the exact point decided.

It will be observed that the ruling on this point was entirely disconnected from that relating to insanity or insane delusion. It proceeds on the ground that the testatrix was of sound mind, and that this matter of a belief in spiritual manifestations was not found by the jury to be an insane delusion.

The appellant contends that if any such communication had any influence, however slight, or however short of dictation, on the mind of the testatrix, it would invalidate the will, although in all respects she was of sound mind.

There is no doubt that the law allows any person to seek advice, suggestions and opinions from others, where no fraud or deception is practiced. The law does not limit the range. If a pions man of sound mind should seek advice by prayer, and should believe that he had a direct answer and should regard it, not as dictation but advice entitled to consideration, would any one say that his will could be set aside as made under undue influence? Or if such a man should say, “I have had a dream which impresses me considerably as to the disposition of my property, and I shall give it consideration,” would any one say his will was void, unless it was shown that the testator yielded his own will and judgment to the suggestions of his dream ? In this case, the widow, it is assumed, thought she had received letters, not from an absent husband, but from one who had gone beyond this world to another, and in them some suggestions as to the disposition of her property; that she did not yield implicitly and blindly to these suggestions, but regarded them,: — as she would have regarded such letters if they had heen written during life — as friendly suggestions, which had some effect on her mind, but not- to the point of'destroying her own free will and deliberate judgment. Now, it is evident that the judge must either direct the jury to disregard entirely all this matter about spiritual communications, as having no bean’ng on the question of undue influence, or rule that if they had the slightest influence on the mind of the testatrix in making her will, they entirely invalidated it; or else rule, as he did, that they must be taken into consideration by the jury and come under the general rule as to undue influence, and be subjected to the same test. If they dictated the will, it was void. If they influenced the mind, but did not control it in making the will or any part of it, then the will would not be by them invalidated on the ground of undue influence.

Without pursuing this point at more length, we say that we do not find these instructions erroneous.

There were several objections made and exceptions taken in relation generally to the admission or rejection of evidence. The first is, that the subscribing witnesses to the will were allowed to testify to their belief and opinion as to the soundness of her miud at the time of executing the will. It is not denied, however, that such witnesses may so testify.

But it is insisted that, to lay a foundation for such admission, all the facts transpiring at the time, all that was said and done, and all the premises from which the conclusion was drawn, must be stated. We do not so understand the rule or the practice. The rule admitting the opinion of witnesses to a will is somewhat exceptional. It is thus stated in Greenleaf on Evidence: “Witnesses to a will are permitted to testify as to the opinions which they formed of testator’s capacity, at the time of executing his will.” It is the opinion then formed that is admissible. The precise point in the- examination when the question is put is not material. It may be as. soon as they have shown that they were present and witnessed the will at the request of the testator. It is the fact of being a witness to the will, that gives this right to ask his opinion of the soundness of mind of the testator. It may be given, although the witness was suddenly called in, and heard only the request to sign and the declaration of its being his last will. .It is undoubtedly true that all the facts seen or known by the witness at the time are proper subjects of inquiry by either party, and it is proper that they should be. But it is not legally n'ecessary that all should be detailed by the witness, if not asked by either party, before he can give his opinion. The weight and value of his opinion may depend very much upon his means of observation and knowledge; and if he can give few grounds for his belief or opinion his testimony would, doubtless, have very little weight with the jury. But it is for the parties to bring out from the witness such facts as they deem important, touching the extent of knowledge on which the witness bases his opinion.

The exceptions to the answers of Narcissa Stone and ¥m. Gr. Barrows are based on the assumption that they were expressions of opinions by non-e'xperts. These answers were given in connection with details of certain facts introduced by the appellees, in refutation of the allegation' of unsoundness of mind made by the appellant.

They were both mere negations; statements that they did not observe certain facts touching the mental condition of the testatrix; i. e., one said she did not observe any failure of mind, and the other, who was a witness to a former will, that he observed nothing peculiar. State v. Pike, 49 N. H., 408.

The only objection in the argument is, that these were expressions of opinion on the question of testamentary capacity.

The question, whether opinions of witnesses not experts are, in all cases where insanity or delusions are in question, to be excluded, has recently been much discussed, particularly in a learned opinion by Mr. Justice Doe of the supreme court of New Hampshire.

If the case required it, we might, perhaps, review some of the former decisions of this court. But, certainly nothing less than a distinct expression of the opinion of the witness, given as such opinion directly, comes within our rule. Mere negations, such as stated by these witnesses, do not give to the jury an affirmative opinion. They, at most, state negatively that nothing was observed by them. This is not an opinion of the witness, but had relation to a fact, as to the condition of the person.

The next exception is that a witness was not allowed to testify to the contents of a letter. A -witness (the appellant) having testified that her mother, (the testatrix) when visiting her at the west, had received letters, a good many from Maine, which made her uneasy and discontented, she was asked from whom they came. This was objected to; the appellant, by her counsel, then offered to show that they were received from A. J. Stone and Mrs. Dennett, but it was objected to, and the question ruled out. A-similar ruling was made, when, after Mr. Nobin son had testified that some communications were sent to Bloomington that were injurious to him and his family, on objection, the court ruled that the witness could not state the contents of the communications.

No evidence was offered of the loss of the letters or of any attempt to obtain them, by summons or otherwise. The rejection of this evidence was clearly within the well-established rule, that the contents of a written document cannot be given by a witness, except in case of loss or inability to obtain it.

Another objection has relation to the admission of the declarations of the testatrix, written and verbal, to show the state of her mind. The report states “that the defendant (the appellant) seasonably made a general objection to all declarations, conversations, statements and acts of Mrs. Green, which did not relate to the subject of spiritualism, or the execution- of the will or codicil sought to be set up. The testimony was not thus limited by the court, by a specific ruling to that effect as requested, but testimony was given, as appears in the report,” not limited as requested.

Was it the duty of the judge thus to limit in advance, or at all?

The issue was a general one; soundness of mind. The executors had offered some testimony upon this point; the appellant then offered a great mass of evidence, tending to show a want of soundness. This evidence was not confined to spiritualism, or the - execution of the will; it embraced evidence tending to show that Mrs. Green not merely believed in spiritual communications, but that she entertained delusions of an extraordinary nature concerning her son-in-law and his wife; particularly concerning Mr. Robinson. As before stated, there was a great deal of evidence on this matter, covering many years and many declarations, acts, imaginations, and asserted delusions. And there was further evidence, on a matter not properly a part of a belief in spiritualism, as generally understood. It is thus stated by the judge in the charge : “But it is contended that she believed more than that simple proposition; that she believed that she had power to heal, and to some extent, exercised it at home and on others ; that she believed it was the same sort of power that was employed by Christ and 1ns apostles ; I suppose of the same nature as the power possessed in those miraculous days; and that she had various other imaginations, delusions in one way and another.” The appellant offered evidence on all these matters, which was admitted, including spiritual communications and declarations of various kinds ; all admitted to show the state of the testatrix’s mind, covering many years.

The executors resumed, and the judge permitted them to show like declarations, acts, beliefs, &c. There was no limitation suggested until after the appellant had put in this great mass of evidence. The issue was on the soundness of mind of the testatrix, and the court ruled that the burden to sustain this general proposition was on the executors, and that it did not shift, but remained on them to the end. Spiritualism and the due execution were not the only matters to be considered, or rebutted. The great fundamental rule of law, which requires impartiality between the parties, would have been violated by the ruling requested, and it was properly refused. How far a party can be allowed to interpose objections as to particular testimony under such a general objection, may be very questionable. But if open, we do not find, on perusal of the report, any admission which is clearly illegal. The rule allowing the introduction of the declarations of a testator, to show the condition of his mind, is very general, and admits much that would be excluded if offered as testimony to pr.ove facts. The rule allows great liberality to both parties as to the kind of evidence, and as to the length of time over which it extends. Much is necessarily left to the discretion of the presiding judge, and it is impossible to lay down any general rules which would cover all cases. To enable the jury to determine the real state of mind, the action of that mind, as shown best by conversations, declarations, claims and act?, is the most satisfac tory evidence. But, in order to fairly judge, the examination must not be confined to a single declaration, or conversation, but must embrace sometimes many years and many different acts and declarations, and sometimes, perhaps, the evidence may, at first view, be remote and far from a demonstration.

The judge was very decided and emphatic in his charge to the jury in enforcing upon them the fact, that these declarations of Mrs. Green were admitted to show her state of mind, and of her feelings toward the parties, and whether or not they exhibited evidence of insanity,'or delusion amounting to insanity, at any time. “They are not to be regarded as proof that what she said to the witnesses, or wrote in these papers, were facts. They are not given on oath. They are not legal evidence of the facts stated.” The judge repeated and elaborated this idea, so that the jury must have understood the weight they could give to this species of evidence.

The exceptions, however, as to this part of the case, are that the evidence was not confined to spiritualism and the execution of the will. We think it clear that it should not have been.

The chief, if not the only, specification dwelt upon by the counsel, is the written statement of Mrs. Green, which has annexed to it a jurat. The counsel is mistaken in saying that it was used as evidence of the facts therein stated. It was admitted expressly— the same as much other evidence of a like character — solely to show the state of mind of the testatrix in reference to the very matters in question. The jurat did not make it a deposition, or give it any greater force or effect. It was still the declaration of Mrs. Green, and the jury were charged distinctly, not to regard it as proof of the actual existence of any fact.

The rule given as to the burden of proof was clearly correct.

Exceptions and motion overruled.

Appleton, 0. J., Walton and Dickerson, JJ., concurred. Barrows, J., did not sit in this case.

Note : — At the December term, 1874, for Sagadahoc county, the proponents having withdrawn from the prosecution of the will, it was. disallowed and refused probate, by arrangement, and upon payment of $3000 to the contingent legatees by Mrs. Kobinson, the sole heir-at-law; the whole estate being valued, at that time, at about twenty-seven thousand dollars.