Bellows v. Sowles ( 1886 )

The opinion of the court was delivered by

Ross, J.

The exceptions in regard to the admission and rejection of testimony are to lie considered with reference to the issues between the parties. The only issue tendered by the plaintiff upon the consideration for the defendant’s promise was whether he honestly, and upon reasonable grounds, entertained the belief that his uncle’s will was, so far as related to him, the product of undue influence exercised by the defendant and his wife. He expressly waived the right to show, and made no claim from'his evidence, that undue influence, in fact, had been., used. Upon whether he honestly, and upon reasonable grounds, at the time of the negotiations with, and promise of the defendant, believed that such undue influence had operated in the production of the will, the fact that the testator had attempted to devise property which he did not own, was admissible. It tended to show that the will was not understandingly and intelligently made; and, considering the character of the testator for intelligence, tended to show undue influence from some source. The will of James Bellows, with the evidence showing that the testator never fulfilled the conditions of the legacy, and hence did not take, the land which he devised to his nephew, James E. Bellows, tended to show that the testator specifically devised property which he did not own. Hence this evidence was properly admitted as having a tendency to sustain this issue.

That portion of the testimony of George A. Ballard, excepted to, was called out 'by the question of tlíé defendant, and the court properly might have allowed him to'corirplete the answer, when being cross-examined. It is not fair usage of a witness to stop him in the middle of his answer, and‘so, perhaps, make his answer convey a wrong impression. The court, 'for the 'same reason',' properly allowed him to complete'the answer oil re-examination by the plaintiff. Nor'was the testimony giVen in the ‘ further answer open to the objection of being hearsay evidence.' What'-MrvRoyce -told him éxisted'as evidence'bore'directly' upon* the grounds bf the witness’s- belief and advice'' to the plaintiff, that'he'th'ought the-plaintiff‘could successfully oppose" the establishment'df the will. ■ There' was no* error ‘ill allowing "the witness'Ballard' to' complete- his 'answer to the question'. '..

The'petition for' the new trial was' propei’ly admitted to impeach the defendant, by showing that-his testimony on-'thé stand, in regard to the date' of his interview with the plaintiff, was different from what it was in' the petition for the new trial and on the former trial. If the affidavits attached were such an integral part of the petition'that the defendant had the right to have them go to the jury, the court accorded him that right. He ivas not legally injured, so far as appears, that they were not put in with the petition. We clo not understand that when a part of a written document becomes admissible to show a particular fact, as a date, that thereby the whole document is made evidence in the ease-. Only those parts of the document-which -relate to,; modify,' 'or-qualify the’qrart introduced -aié'' iniidé evidence. • ’1 Hence ,'buly those parts'',.of.'..the affidavits ¿itfa.clie.dl to -.the ..petition .which-qualified or modified the- defehda-nks swoidi statement iii'the petition of “the. time of the 'interview, became admissible. But these portions;.of.-the affidavits were no part of the defendant’s sworn statemenkof the date of the interview, and, at most;’could’ only hear upon the honesty and good faith of the defendant in making the swornstatement lie did of the daté' óf interview; The court admitted them for that purpose. Hence, there was no legal error in the ruling of the County Court on this subject.

The testimony oifered by the defendant to show that neither he nor his wife ever exerted any undue influence on the testator in regard to his will was properly ruled out, when the plaintiff ■conceded that he did not make that issue, nor claim that any Undue influence in fact had been exercised on the testator. Nor was this testimony admissible on the issue, whether the plaintiff honestly, and upon reasonable grounds, believed, on the occasion of the negotiations, that the will was produced by undue influence. It was not shown, nor offered to bo shown, that the plaintiff then knew of any of the facts offered to be shown. On the defendant’s offer, the facts offered to be shown were wholly unknown to the plaintiff at the time of his negotiations, with the defendant. Hence they could have had no bearing upon the plaintiff’s belief, pro or con. This disposes of all the exceptions shown by the record.

The judgment of the County Court is affirmed.