Brown v. Brown , 108 Mass. 386 ( 1871 )

Chapman, C. J.

1. This action is brought by the demandant, by her guardian; and upon the trial the letter of guardianship was admitted in evidence, against the tenant’s objection. The ground of the objection was, that, as the tenant had not denied the guardianship in her answer, there was no issue raised in the pleadings which made the letter pertinent as evidence, and the admission would prejudice the tenant. We do not perceive the force of this objection. The letter would be pertinent as part of the history of the case, to show the time when the demandant was placed under guardianship, and that its cause was insanity, and thus make this part of the case more definite. The admission of the fact by the tenant would not make the letter inadmissible, nor can we see how it could prejudice the tenant.

2. The demandant derived her title from the will of her father, who in 1809 devised it to her for life. His title was not controverted. In her defence, the tenant put in the will of her brother, Jonathan Brown 2d. The evidence tended to show that the demandant, who was Jonathan’s sister, had formerly lived with him and been supported by him. His will, dated in 1846, devises his real estate to his sons and grandsons, gives several legacies, makes his three sons executors, and adds the clause which is quoted in the exceptions. The tenant claims title under the will of John Brown, and contends that the demandant’s title is forfeited under that clause. She also put in an office copy of an indenture, made in 1868, between the demandant and Abby K. Williams, the tenant’s daughter, by which the demandant conveyed the demanded premises to Mrs. Williams, and the latter agreed to support the demandant. The copy was admitted, against the demandant’s objection. At a subsequent stage of the case the tenant offered the original, and offered the subscribing witnesses to prove it. But it was objected to, and the court ruled that the tenant, having elected to put in a copy, could not subsequently put the original into the case. We think the court had a discretionary right, under the circumstances, to make this ruling; and that it is not subject to the tenant’s exception. The tenant had no absolute right to introduce both the original and the copy.

3. John S. Webber, one of the subscribing witnesses to the indenture, testified that the paper was carefully read to the demand-ant before it was signed; that she assented to its terms, and acknowledged it as her free act before him as a magistrate. On cross-examination, he denied having said that she was non compos and did not know anything more than a log of wood. A witness was afterwards allowed to testify for the demandant, that Webber had said, in a conversation which the jury would be authorized to regard as referring to this paper, that she was non compos and “ don’t know anything more than that log of wood,” pointing to a roller. This was objected to; and it is contended that it does not contradict Webber, and that, if he made the statement, it was immaterial, being the mere expression of an opinion. But his tesifmony as to the acknowledgment of the deed clearly implied that she acknowledged it intelligently; and the statement proved was more than an opinion. It was a statement that she had not, as a fact, acknowledged the deed intelligently. The case is more like Hathaway v. Crocker, 7 Met. 262, than like Hubbell v. Bissell, 2 Allen, 196, and Commonwealth v. Fairbanks, Ib. 511.

4. It appeared that the demandant had been living with Jonathan till his decease, and then lived with the tenant and Mrs. Williams till the spring of 1869, when she left them, and went to reside with her guardian, who is her nephew. The tenant contended that she was induced to take this course by improper influence, and that the guardian, who was a devisee under the will of Jonathan Brown 2d, and was one of the executors, desired to gain as advantage to himself by removing her, and had brought this actian for that purpose. The materiality of that matter is not very apparent, as it does not tend to disprove her title; but it was regarded as important at the trial. The demandant was permitted to meet it by offering evidence that at the time of her removal she was insufficiently provided with clothing and comfortable bedding; and that since her residence in her guardian’s family she had never been required to do any work, and had not done any. This evidence is excepted to. But it had some tendency to show that she had a reasonable motive for removing to the house of the guardian and remaining there, such as might influence any person, sane or insane. It applied to the point of improper influence, and tended to rebut the accusation.

5. We think the qualification of the first prayer for instructions, which was made by the judge, was right. The question to the jury was whether the demandant had forfeited her title to the demanded premises, by accepting the provision made for her in her brother Jonathan’s will. It was admitted by the judge that she might thus forfeit it. But it was important that he should state this principle with all proper qualifications, and he rightly stated that the election must be in view of the substituted provision. He also made a correct qualification of the request for instructions as to the balancing of advantages, and as to the intelligent acceptance of the provision made by the will, and as to her mental capacity. She could not be bound by an act done while she was non compos mentis, or made uninteUigently, and not in view of the provision which she elected to take. As to the third and fourth requests, the subject matter is covered by the first and second instructions, so far as the case required ; and the instructions to the jury were correct.

6. A question is stated on the tenant’s brief as to the burden of proof; but no such question appears to have been raised at the trial. Exceptions overruled.