Pattee v. Whitcomb , 72 N.H. 249 ( 1903 )

1. The testator's statements as to his last wife and her relatives were excluded for remoteness, as they well might be, and their exclusion presents nothing for our consideration.

2. Upon the issue whether the testator was unduly influenced by his wife to execute the will in question, evidence of the quality of his mind, with respect to its susceptibility or non-susceptibility to the influence of others, was competent. Patten v. Cilley, 67 N.H. 520, 528. A fortiori, evidence of the susceptibility of his mind to the influence of his wife, in particular, was competent. If the witness offered by the appellant to prove the latter fact was qualified, by personal acquaintance with their relations, to give an opinion upon the subject, it was competent for him to do so. Patten v. Cilley, supra; Carpenter v. Hatch, 64 N.H. 573; Hardy v. Merrill, 56 N.H. 227, 241, 244, 248; Commonwealth v. Sturtivant,117 Mass. 122, 134, 137; McKee v. Nelson, 4 Cow. 355; Railway Co. v. Yarborough, 56 Ark. 613, 617, and cases cited; Connecticut etc. Ins. Co. v. Lathrop, 111 U.S. 612, 622; 1 Gr. Ev. (16th ed.), s. 441. But whether the witness was qualified to express an opinion, was a question of fact for the trial court. Carpenter v. Hatch, 64 N.H. 573, 576; Patten v. Cilley,67 N.H. 520, 528. We must assume that the trial court decided that the witness was not qualified to express an opinion. In this view, the exception must be overruled.

3. The adverse party being an administrator who had not elected to testify, the appellant was properly not permitted to testify that the testator "was a man who could be easily influenced." P. S., c. 224, s. 16.

It is urged that the statutory prohibition relates only to "facts which occurred in the lifetime of the deceased," and that the quality of the testator's mind, whether firm and decided, or irresolute and easily persuaded to conform to the wishes of others, was not a fact "which occurred in the lifetime of the deceased," within the meaning of the statute, but only an attribute of character, concerning which the appellant might have testified consistently with the letter and spirit of the law. The argument would have force were it not that an opinion as to the quality of another's mind cannot exist independently of facts. Something must have transpired to afford a basis for opinion. If the appellant had been permitted to testify that the testator was a man who could be easily influenced, it would have been the right of the administrator to have him tell the facts upon which he based his opinion; the testator, if alive, might have denied the facts altogether, or so explained them that they would have appeared entirely consistent with firmness of character; being dead and unable to either deny or explain, every reason for the statute would seem to forbid the appellant testifying as proposed; and "facts which occurred in the lifetime of the deceased" being necessarily involved in the testimony offered, it was prohibited by the letter as well as the spirit of the statute.

4. "The order of proceeding at the trial was adopted because justice and convenience required it," and presents no ground for reversal. Boardman v. Woodman, 47 N.H. 120, 143, 144; Hardy v. Merrill, 56 N.H. 227, 234; Schoff v. Laithe, 58 N.H. 503, Patten v. Cilley, 67 N.H. 520, 528.

5. The conversations between one of the appellee's witnesses and the testator, on the day of the latter's death, were competent as bearing on the question of his sanity.

6. The administrator, the only party who could object to the heirs of Caltha R. Whitcomb testifying, did not object. They were, therefore, properly permitted to testify, notwithstanding the objection of the appellant. Marcy v. Amazeen, 61 N.H. 131, 133.

7. The fact that the heirs of Caltha R. Whitcomb testified did not entitle the appellant to testify in rebuttal, as a matter of legal right. By the express terms of the statute, it is only when the "administrator . . . elects so to testify" that the adverse party may testify, as of legal right. P. S., c. 224, s. 16. Whether the appellant should have been permitted to testify in rebuttal as a matter of justice, pursuant to the authority conferred upon the court by section 17, chapter 224, Public Statutes, is a question the record does not present for our consideration.

The remaining exceptions by the appellant are plainly untenable and require no consideration.

Exceptions overruled.

All concurred.

After the filing of the foregoing opinion on January 7, 1903, the appellant moved for a rehearing and obtained an amendment to the reserved case, from which it appeared that the opinion of the witness as to the influence of Caltha over the testator was excluded because it was incompetent as matter of law.