Lewis v. Mason , 109 Mass. 169 ( 1872 )

Ames, J.

We do not think that any of these exceptions should be sustained.

The fact testified to by the physician, Wakefield, was brought out upon cross-examination, and was admissible as having a tendency to show that, on the occasion referred to, Charles H. Lewis had both the power and the inclination to exert, by means of angry and imperious language, a controlling authority over the testator. The weight and importance of such testimony would be for the jury to consider, and might be very trivial if only one instance of the kind were proved. Its competency admits, in our opinion, of no doubt.

The proceedings upon the petition that the testator should be put under guardianship, as an insane person and incapable of taking care of himself, raised no question except as to his sanity. Upon the issue on that point, the verdict has been in favor of "the appellants, and they have therefore not been prejudiced by the rejection of the judgment of the court upon that petition. The proceedings were competent for the purposes for which they were admitted, and have become immaterial and unnecessary for any other.

The testimony as to the language addressed by Charles to his brother Nathaniel was admissible, for the reason that it had some tendency to show a purpose on the part of the former to keep the testator under his supervision and control and to exclude other members of the family from any opportunity to interfere. It was at least proper for the jury to consider. So also the fact testified to by the daughter Mary Ann had a tendency to show wnat was the testator’s state of mind towards her, and that his affection for her continued unimpaired to the last. It is true that he might nevertheless have reasons for giving her by his last will a smaller share of the property than he bestowed upon others of his family. The improbability however that he would do so, if left to the exercise of his own free and unbiassed judgment, wa¿ an argument which the appellee had a right to urge, and to sub stantiate by all competent evidence.

With regard to the testimony of Dr. French, it appears that he had been the testator’s family physician, although he had not visited him as such since 1860, and had seen very little of him since 1866. He described the testator’s apparent physical condition, and added that “he appeared as if in the last stages of second childhood.” We think that, with his professional knowledge of the testator’s constitution and former condition, and competent as we must assume that he was to appreciate the appearances of decay and loss of faculties implied in his description, the last answer which he gave was admissible under the rule given in Hastings v. Rider, 99 Mass. 622.

The written instrument, signed by the testator and deposited with the appellee, setting forth the terms upon which Charles and his wife lived with the testator, was admissible as showing the relations which the latter understood to subsist between himself and them, in regard to their joint occupancy of the dwelling-house. The appellants we think have no ground of exception to this ruling.

The agreement as to what the attesting witness Tufts would testify if present, in regard to the execution of the codicil and the sanity of the testator, g«ye the same right to the appellee to contradict that “witness, by proof of conflicting statements on his part at other times, as if the witness had been present and had testified. Such proof was not introduced for the purpose of obtaining that witness’s opinion as to the effect of the instrument, or the conduct of the appellants, but to contradict his testimony. The evidence offered for the purpose of impeaching the testimony of Almira Lewis stands upon the same ground.

The other facts, namely, that Charles had disposed of the testator’s property by mortgage, &c., which he had induced the testator to sign, and which the testator had afterwards declared that he did not remember or understand, and that he had transferred property at different times to Charles, were proper for consideration upon the question of undue influence. Their weight and effect were of course to be passed upon by the jury.

Exceptions overruled.