Jenkins v. Weston , 200 Mass. 488 ( 1909 )

Sheldon, J.

1. The petitioner’s exceptions to the admission of testimony cannot be sustained.

The telegrams admitted were objected to only as being too remote. But each one of them was within the limit of time which previously had been fixed by the single justice, so far as appears without objection by either party. Three of these telegrams, those sent by the alleged testator, come within the general doctrine that the appearance, acts, conduct and declarations of one whose mental condition is in issue may be put in evidence, if they are of such a character as to throw light upon that question, and if they are not too remote in time. And whether they are too remote in time is a question which must be determined in the discretion of the justice who presides at the trial and hears the evidence, and his conclusion is not to be reversed unless it was manifestly unfounded. Hagar v. Norton, 188 Mass. 47, 52. McCoy v. Jordan, 184 Mass. 575, 576, 577. Lane v. Moore, 151 Mass. 87, 90. Commonwealth v. Pomeroy, 117 Mass. 143, 148. Shailer v. Bumstead, 99 Mass. 112, 130. We find nothing to indicate that this discretion was not rightly exercised in the case at bar. And for the same reason the testimony of Dr. MacDonald to his opinion that the alleged testator was of unsound mind early in 1901 and to the grounds of this opinion, was competent. It was not contended that Dr. MacDonald, who had been an attending physician to the deceased, was not qualified under our rules to express an opinion.

The testimony of Tleakes was not incompetent as including statements of his mere opinion. He testified to the things which he himself had observed. His testimony cannot be said to have been irresponsive. It does not appear to have gone beyond his personal knowledge. It comes fairly within the rule that a witness may state the results of his observation, even though this does in some measure involve his opinion or judgment as to matters which cannot be exactly reproduced or described to the jury precisely as they appear to the witness. So far as they include opinions, these are rather conclusions in the nature of facts which have become a part of the knowledge of the witness than mere opinions. They are received ex necessitate, because of the impossibility of reproducing the numerous particular facts upon which they are founded. This is the general doctrine of our decisions. Partelow v. Newton & Boston Street Railway, 196 Mass. 24, 31. McCoy v. Jordan, 184 Mass. 575, 578. O’Neil v. Hanscom, 175 Mass. 313. Commonwealth v. Sturtivant, 117 Mass. 122, 123. Barker v. Comis, 110 Mass. 477. Parker v. Boston & Hingham Steamboat Co. 109 Mass. 449. This doctrine was fully discussed, with abundant citation of authorities by Rugg, J., in Gorham v. Moor, 197 Mass. 522.

2. The question whether Pratt had any standing to object to the allowance of the will is not open upon these exceptions. The jury were not to determine whether the will should be allowed, but simply to pass upon the issue whether the alleged testator was of sound and disposing mind and memory. No question was raised when the case was opened to the jury or while the evidence was going in, of the right of Pratt as well as of Henry E. Weston to participate in the trial. Apparently by-arrangement between these two as contestants, the active management of the contest against the will was left mainly to Pratt’s counsel. It was he who called all the witnesses for the contestants, who had procured and who put in the depositions taken in their behalf, who cross-examined the petitioner’s witnesses except for “a question or two” put by the other counsel, and who substantially conducted the whole trial, and manifestly was relied upon by both contestants to make the concluding argument to the jury. All this had been done with the concurrence of the other contestant, and without any hint of objection by the petitioner. Under this state of facts, the justice had a perfect right to allow Pratt’s counsel to make the closing argument to the jury, if indeed he was not bound to do so. It could not be material whether the counsel in making that argument was to be regarded as acting for the one or for the other contestant. It was the weight of his reasoning and not his representative capacity that was to be considered. If his argument contained anything objectionable, yet the petitioner did not care to make the objection or to ask for any rulings with reference thereto. And the justice might well refuse to give to the jury either of the three instructions asked for. None of them had any bearing upon the only issue which was to be submitted to the jury, and upon which alone it was the duty of the justice to instruct them; and the giving of them could have had no other effect than to distract the attention of the jury from that issue. Accordingly, we need not consider the very interesting question whether Pratt, by reason of the appointment made in a former will in his favor, had any right to object to the allowance of this will, or whether any of his rights would have been injuriously affected by such allowance. If, now that it has been settled by the verdict of the jury that William H. Weston was of unsound mind when he executed this alleged will (Busiere v. Reilly, 189 Mass. 518, 520; Crocker v. Crocker, 188 Mass. 16), the petitioner cares to raise the question of Pratt’s right to be heard in opposition to its allowance, we need not consider whether he can do so at the hearing which will be had before a single justice to determine what decree shall be entered.

The bill of exceptions stated that adequate instructions, to which no exception was taken, were given as to all issues other than those referred to in the three requests for rulings. This was all that was called for.

Exceptions overruled.