Smith v. Smith , 157 Mass. 389 ( 1892 )

Barker, J.

Upon the trial of an issue whether the testator was of sound mind, a witness who had known him many years, and had testified that he began to fail about twenty years ago, and had failed mentally and physically, and that he had noticed a decided change in his intelligence, and that from 1887 to 1890, when the will was made, he had noticed that he was very decrepit, and that he was broken up generally as compared with former years, was then asked, “ Whether, from the general appearance of the testator, he considered him capable of making a contract, or of transacting important business ? ” The witness was neither an attesting witness to the will, nor an attending physician, nor an expert in matters of mental condition. The question called for no other answer than an opinion upon the mental condition of the testator. In accordance with the rule early adopted, and uniformly adhered to by this court, the witness could not be allowed to give his opinion, and the question was rightly excluded. Poole v. Richardson, 3 Mass. 330. Buck-minster v. Perry, 4 Mass. 593. Hathorn v. King, 8 Mass. 371. Dickinson v. Barber, 9 Mass. 225. Needham v. Ide, 5 Pick. 510. Commonwealth v. Wilson, 1 Gray, 337, 339. Baxter v. Abbott, 7 Gray, 71. Commonwealth v. Rich, 14 Gray, 335, 337. Hubbell v. Bissell, 2 Allen, 196, 200. Commonwealth v. Fairbanks, 2 Allen, 511. Ashland v. Marlborough, 99 Mass. 47. Hastings v. Rider, 99 Mass. 622, 625. Commonwealth v. Dorsey, 103 Mass. 412, 419. Lewis v. Mason, 109 Mass. 169,175. Parker v. Boston & Hingham Steamboat Co. 109 Mass. 449, 451. Barker v. Comins, 110 Mass. 477, 487. Nash v. Hunt, 116 Mass. 237, 251. Commonwealth v. Sturtivant, 117 Mass. 122, 133. May v. Bradlee, 127 Mass. 414, 421. Commonwealth v. O’Brien, 134 Mass. 198, 200. Commonwealth v. Brayman, 136 Mass. 438, 440. Cowles v. Merchants, 140 Mass. 377, 381. Williams v. Spencer, 150 Mass. 346. McConnell v. Wildes, 153 Mass. 487, 490.

The reasons upon which opinions of persons, not attesting witnesses of the will, and having no peculiar skill or professional experience, are excluded, have been stated to be “ that they are not facts, but opinions, of those having no peculiar duty or car pacity to form them, upon a matter requiring special knowledge and skill to judge of intelligently, as to which every unskilled witness has a different standard, and which can be quite as well understood by the court or jury from proof of the details of the acts and conduct of the person whose mental capacity is in question.” Gray, J., in Hastings v. Rider, 99 Mass. 622, 625. These seem to us sound reasons, and we are not disposed to change the rule which, in our opinion, as stated by Colt, J., in May v. Bradlee, 127 Mass. 414, 421, affords “ for the guidance of the jury, under the instructions of the court, the most satisfactory means for determining the question of testamentary capacity.”

Exceptions overruled.