240 Mass. 514 | Mass. | 1922
This is an appeal from a decree of the Probate Court allowing the will of George H. Caldwell, wherein the court ruled that on the evidence the appellants were not entitled to appear as persons interested in the estate of the testator. They based their right to object to the probate of the will on the ground that Natalie Elva Caldwell, referred to by said Caldwell in his will as his daughter, was not in fact said testator’s child, in which event they would be his next of kin. After a ruling that the contestants had no standing before the court until they should overthrow the presumption that Caldwell died leaving a legitimate child, they assumed the burden of proving that the alleged daughter was illegitimate. The exclusion of testimony offered at this preliminary hearing in support of that claim forms the basis of the appeal.
It appeared that said George H. Caldwell, aged seventy-five years, was married to Maud A. (Taylor) Caldwell, then eighteen years of age, on the fourth day of September, 1913; that they lived together, until his death in August, 1920; and that Mrs. Caldwell gave birth to this child in 1918. As the child was born in wedlock, it was necessary, in order to overcome the presumption of legitimacy, to prove either (1) that the testator had no access to his wife during the time when, according to the course of nature, he could be the father of the child, or (2) that the testator was impotent. Hemmenway v. Towner, 1 Allen, 209. Phillips v. Allen, 2 Allen, 453. Numerous exceptions were taken to the exclusion of evidence. As the contestants now rely solely on the issue of the husband’s impotency at the time of conception of the child, the exceptions to the exclusion of evidence not addressed to this issue néed not be considered. We shall discuss only those that are argued by the appellants, following the classification adopted in their brief.
1. Since Lord Mansfield’s decision in Goodright v. Moss, 2 Cowp. 591, the generally prevailing rule is that where the legitimacy of a child born in lawful wedlock is in issue, in the absence of statu
2. It is argued that the trial judge excluded testimony based, not on declarations of the testator, but on the knowledge of the witness. The witness Chase was asked “Will you state what they [his habits of lifej were? ” The offer of proof
3. There was no prejudicial error in excluding the questions to the expert. Whether a man of the testator’s age was “likely” to be the father; and whether the spermatozoid of an old man is “liable to be strong enough or virile enough to produce children,” did not go far enough. The issue was impotency, not "likelihood;” that is, was this man physically unable to propagate species?
4. No formal exception appears to have been taken to the exclusion of the birth certificate.
While the record before us is in the form of a report, it is in reality an appeal from a final decree, with a transcript of the evidence, and we have treated it accordingly. See G. L. c. 215, § 9; c. 214, §§ 24, 25; Worcester v. Lakeside Manuf. Co. 174 Mass. 299.
Decree affirmed.
The offer of proof, which followed the exclusion of the question, was as follows: “I desire to show ... by this witness £and with the witness’s observation] that prior to his [the testator’s] marriage to the last wife that he was unable to have intercourse with women and was impotent.”
The certificate offered was by the registrar of the city of Boston, where the child was born.