Bridgham , 82 Me. 323 ( 1890 )

Peters, C. J.

The following question and answer are contained in a deposition used, on an issue, before the jury, whether a testator had mental capacity to make a will or not: “What opportunities did you have for knowing the condition of the mind of said Samuel Stearns prior to the 23d day of November, 1887, and on or about that time ? State fully.” Answer: “I saw him every day; heard him talk about his affairs, about-making his will with Mr. Dunn ; saw him settling with men who were owing him money, Mr. Bartlett and Mr. Cobb. He was just as sane as you or I.”

The deposition was taken to be used before the probate judge, and by written agreement of parties it was to be used at any other tiial of the same case. 'The interrogatory and answer were read without objection, and thereupon the counsel for contestants moved that the last clause in the answer be stricken out, and the motion was denied. It does not appear in the bill of exceptions upon what ground the denial by the judge was based.

It could not have been .upon the ground that no objection was noted when the deposition was taken, for, if the evidence is incompetent and not merely informal, the objection need not be noted in the deposition itself. Lord v. Moore, 37 Maine, p. 217.

Nor could it well be upon the ground that the written agreement to allow the deposition to be used was a waiver of any objection to the incompetency of the evidence. Where the deposition contains principally competent testimony, such an agreement would not imply that a portion of the deposition containing incompetent testimony is to be received, if objected to.

It is to be inferred that the judge considered the request for an amendment of the answer as coming too late. The counsel for the contestants knew of the objectionable clause, if it be such, in tbe answer, and made no request or objection until after it was read. At all events, we think the evidence was not important enough to deprive the judge of the power to exercise such a discretion. The deponent was not testifying as an expert, but as a person who had observed the daily conduct of another, and that was his way of expressing himself. Although the rule in this state excludes witnesses from testifying directly to their opinion of the sanity or insanity of another, when that question is the issue to be decided, very many things short of that are admissible, though in the nature of opinion, and the rule has been a good deal liberalized, as will be noticed by an examination of the case of Fayette .v. Ohesterville, 77 Maine, 28, and the cases cited in that case.

Exceptions overruled.

Walton, Virgin, Emery, Foster and Haskell, JJ., concurred.