Taylor v. Creeley , 257 Mass. 21 ( 1926 )

Wait, J.

After a verdict of a jury finding that Thomas L. Greeley was not of sound mind when he executed his last will, the petitioners for the probate of the will present exceptions saved in the course of the trial.

1. Whether the case should have been taken from the jury in consequence of the appearance of three newspaper articles published in the early days of the trial was a matter for the discretion of the judge presiding. Noble v. Mead-Morrison Manuf. Co. 237 Mass. 5, 16. Commonwealth v. Berley, 254 Mass. 556. Unless clearly wrong, his determination will not be disturbed. There is no evidence that any juror had read the articles. They were not truthful statements of the issues of the case; and they lead easily to a false estimate of the relation of Mr. Taylor to the property of the estate. If any juror read them and gave them credence, they would seriously prejudice the petitioners.

The judge may have been justified in concluding, nevertheless, that they were not shown to have been prejudicial. He could have been more emphatic in dealing with the matter, and have instructed the jury not to read any accounts of the trial and not to allow any one to speak to them of the case except in the court room and in the proceedings of the trial. The parties are entitled to know all that is brought to the attention of the jurors bearing upon the trial which is in progress. They cannot have such knowledge if, during the trial, jurors are permitted to read description and comment in newspaper articles. The judge could not well comment to the jury upon what was said in the articles. So to do would be, perhaps, to bring to the knowledge of the jury matter of which they knew nothing. Consequently, he was justified in refusing to make any statement at that time in regard to any interest of Mr. Taylor. We are unable to sustain this exception.

2. The hypothetical question to the experts of the contestants was consonant with our trial practice. Anderson v. Albertstamm, 176 Mass. 87.

The question stated and assumed as true only the facts consonant with the answer desired, and it omitted other facts which were practically admitted by the contestants and which, if stated, might well have led to a different answer. It was prejudicial to the proponents of the will. There would have been no error in excluding it. The jury-should have been instructed that the answer should be given no weight as evidence of the mental condition of the testator at the date of the execution of the will unless they found all the facts therein assumed to be true; and that only those facts were true. The first part of such an instruction was given, but the last part was omitted. It is manifest that the man pictured by the question was not the man described by all the testimony, and that the expert who could honestly say that the man so pictured was not of sound mind, might have great difficulty in declaring the man disclosed by all the evidence to be unsound in mind.

It is impossible to state in a general rule all the elements of a legitimate hypothetical question. Circumstances vary so greatly and so widely that what is proper in one case is improper in another. The law leaves to the presiding judge the power to decide what to admit and what to exclude. Commonwealth v. Johnson, 188 Mass. 382. Carroll v. Boston Elevated Railway, 200 Mass. 527. In the state of the evidence when the question was put, there was no abuse of power in admitting it. The bill of exceptions does not disclose that any request was made that the answer be excluded and the evidence be struck out; nor any request that the jury be instructed to disregard it, or that they be instructed that no weight was to be given the answer if they found in the evidence other facts which were not included in the question and which in their judgment were properly to be given consideration in reaching a sound opinion on the testator’s mental condition at the moment of the execution of the will. The hypothetical question put by the proponents to the experts called by them is open to the same objection. It may be that they preferred to take their chances upon the jurors’ reaction to both questions, rather than to have both struck out as might have happened had they made the appropriate motions. As no abuse of discretion is made out, we must overrule this exception.

3. The questions to the witness Goodall with his answers. were admitted improperly. The trial judge ruled that he was not qualified as an expert in mental diseases, yet he was allowed to express an opinion on senile dementia, a mental disease. The testimony was not unimportant, since it might base an argument that senile dementia had developed from the well established arteriosclerosis, and had reached the point of mental unsoundness. This exception must be sustained. Hastings v. Rider, 99 Mass. 622, 624. Old Colony Trust Co. v. Di Cola, 233 Mass. 119, 124.

4. The testimony of the witness Scarfo, admitted against the exception of the petitioners, described conditions in the household of the testator for which he might be thought to be responsible. In connection with testimony of neglect of his person, this evidence was not without significance. It could have been excluded as remote, but we cannot say the judge erred in allowing the jury to consider it. Lane v. Moore, 151 Mass. 87.

' 5. We are unable to see how the testimony of Mrs. Cummings to which exception was saved had any bearing upon the mental condition of the testator in January, 1915, or upon any .matter of credibility or bias. No question of undue influence exerted by this witness was before the jury. The evidence was admitted improperly.

6. Exceptions were saved to the refusal by thé judge to give requests numbered 13, 16, 25, 26, 29, 30 and 39 of the requests for instructions presented to him. The exception is waived as to request 13. The judge was not bound to give these requests. He cannot be compelled to single out particular matters and witnesses and to comment upon them. Shattuck v. Eldredge, 173 Mass. 165, 168. Quinn v. Standard Oil Co. of New York, 249 Mass. 194, 204. The applicable law was sufficiently stated to the jury. Request 39 is really a motion for a directed verdict and could not be given consistently with Common Law Rule 44 of the Superior Court (1923).

7. There remains only the exception to the refusal to direct that the jurors make answer “Yes” to the issue presented.

There was contradictory evidence before the jury with regard to the facts. What witnesses were to be believed was for the jury. The jury were asked: “Was the testator of sound mind on” a certain date? The real issue is: Did the testator possess testamentary capacity on' the date in question? A person of pathologically unsound mind may possess testamentary capacity. May v. Bradlee, 127 Mass. 414. The facts to be ascertained are whether the testator “was able to understand and carry in his mind in a general way the nature and situation of his property and his relations to those persons who are about him; to those who would naturally have some claim to his remembrance, to those persons in whom and those things in which he has been mostly interested. He must have been capable of understanding those things and the nature of the act he was doing, and the relation in which he stood to those having some natural claims on his bounty, and to those who ought to be in his mind on such an occasion, and free from any delusion which was the effect of disease and which might lead him to dispose of his property otherwise than he would have done if he had known and understood correctly what he was doing.” Whitney v. Twombly, 136 Mass. 145, 147.

There was evidence that he possessed such capacity. The will itself shows that he -understood about his property, his relations to son, grandchildren, sister and those with natural claims upon him. Everything he had was given for their benefit, omitting only direct benefit to the son toward whom his animosity was inveterate. There was no evidence of delusions affecting the disposition of the property. There was a presumption of sanity to be weighed with the evidence in testamentary cases. Fulton v. Umbehend, 182 Mass. 487. Clifford v. Taylor, 204 Mass. 358, 361. See McLaughlin v. Sheehan, 250 Mass. 132, 137.

Against this was evidence of many acts of temper, irritation, momentary feebleness, lapses of memory, failure of recognition, carelessness in dress and neglect of person, irreconcilable ill feeling toward a son who could have been found to have questioned the father’s chastity, and the opinion of medical experts based upon a hypothetical question which omitted many important facts treated as true throughout the trial, that the man characterized by the question was not of sound mind. None of this shows lack of testamentary capacity. We feel constrained to hold that there was no sufficient evidence for the jury in support of lack of such capacity; and that the judge should have granted the petitioner’s motion and directed the jury to answer “Yes.”

Exceptions sustained.