Melanefy v. Morrison , 152 Mass. 473 ( 1890 )

Knowlton, J.

The appellants sought to put in evidence a book which the testatrix had in her library, which it appeared she was accustomed to read. There was nothing to show that the person who was alleged to have exerted undue influence upon her furnished her the book, or used it, or referred to it in any way. There was nothing to show whether she read all of it, and, if not, what parts she read. There was no evidence in regard to the effect, if any, produced on her mind by such portions of it as she read. The offer was to show what thoughts or expressions of others than the persons charged with exerting undue influence had come to the notice of the testatrix, with a view to an inference by the jury that she was peculiarly susceptible to the influence used.

In the absence of anything to show what effect is produced by such expressions,- it is largely within the discretion of the presiding judge to determine how far such evidence shall be admitted. In this case, he permitted the counsel to show the jury the pictures contained in the book. There was no offer to read to the jury any particular part of the book, but the offer was to present the whole of it. In some cases it might aid the jury more or less in determining the mental condition of a testator, and whether he would be likely to be easily influenced, to read everything that he had read, and be told everything that had been said to him, within a long period prior to the making of the will. Within reasonable limits, the court might sometimes properly admit evidence of this kind. But, at best, such evidence is very remote, and generally it is of no value whatever. In. the present case, we think it was within the discretion of the presiding judge to decide how far he would permit the contents of the book to be exhibited to the jury, or whether he would admit any part of it. Even if it had been admitted, it was within his discretion to say whether the jury should be permitted to take it with them to their room when they retired to consider the case. Whithead v. Keyes, 8 Allen, 495.

The witness Parker was not called as an expert. He was one of the subscribing witnesses to the third codicil, and, as such, was allowed to give his opinion in regard to the mental condition of the testatrix when she signed it. Williams v. Spencer, 150 Mass. 346. His opinion as to the strength of mind required to comprehend a clause creating charitable trusts in a will was not competent. To make his meaning clear in describing the mental condition of the testatrix, he might properly have been permitted to refer to familiar illustrations, of a kind that would not be likely to be misunderstood. The appellants’ question which was rejected was asked in cross-examination, and perhaps the judge in his discretion might have allowed it to be answered. But we think his discretion was wisely exercised in excluding it. It involved an opinion on a subject about which jurors and the witness might have differed, and which would not have furnished a safe standard for comparison.

The allowance or disallowance of issues to the jury in a probate appeal rests on the usages and discretion of the court. Davis v. Davis, 123 Mass. 590. In the present case twelve issues were submitted to the jury, and the appellants appealed from the order refusing to submit the last four included in their motion. The first of them was in these words: “ Was said Mary O’Driscoll prevented from revoking said will, and the several codicils thereto, by the force or fraud of said Melanefy or Griffin, or of any other person ? ” What remedies are open to persons interested, if a testator who has made a valid will is prevented by force or fraud from revoking it, is a question which it is unnecessary in this case to decide. We are clearly of opinion that the exercise of a sound discretion did not require the submission of this issue to the jury in connection with the other issues in the case, and in the form in which it was presented. Whether the matter referred to in it, if established, could be availed of in any way in this form of proceeding, is a question upon which we express no opinion. But if it could, which we do not intimate, it could be better dealt with on a subsequent application to the court. The other three issues presented by the appellants related to collateral matters, and the ruling in regard to them was correct. Barker v. Comins, 110 Mass. 477.

Exceptions overruled and order affirmed.