183 Mass. 533 | Mass. | 1903
This is an appeal from a decree of the Probate Court of the County of Essex disallowing a certain instrument offered as the last will and testament of one Thomas Herty. The usual issues were framed and the case was sent to the Superior Court for trial. The jury returned a verdict sustaining the will, and the case is here on exceptions by the contestants to the refusal of the presiding judge to give certain rulings and instructions, and to the admission of certain expert testimony. We think that the rulings and the refusal to rule were right.
1. The rulings and instructions asked for were as follows: “Weakness of the mind arising from advanced age in connection with causes suggested in this case is progressive and permanent in character. It exists in the mind itself and therefore it is, that weakness of mind at the time of making the will may be inferred from weakness subsequent as much so as imbecility of
2. One Dr. Croston was allowed to testify that in his opinion the testator was sane. The testimony was objected to on the ground that the witness was not qualified as an expert, the testimony evidently being admitted on the ground that he was. Whether a witness called as an expert has the necessary qualifications is, in the first instance, a matter for the judge presiding at the trial to pass upon, and his decision will not be reversed unless clearly erroneous. Toland v. Paine Furniture Co. 179 Mass. 501. Warren v. Spencer Water Co. 143 Mass. 155. Perkins v. Stickney, 132 Mass. 217. In the present case the witness had been in general practice more than twenty-one years, and had held a position in the hospital at Blackwell’s Island, and had been connected for twelve years with a hospital in Haverhill, and had been medical examiner of the County of Essex for ten years. He testified that in the course of his practice it would be safe to say that he had treated a hundred insane people ; that one hundred was a small number; that he might possibly have treated a great many more. We cannot say upon this testimony that the decision of the presiding judge was plainly erroneous.
Fxceptions overruled.