Bodfish v. Cross
| Decision Date | 02 April 1920 |
| Parties | BODFISH v. CROSS et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Barnstable County; Robert F. Raymond, Judge.
Proceeding for probate of the will and codicils of William P. Cross by John D. W. Bodfish, his executor, opposed by George N. Cross and others. From a decree admitting to probate, contestants appealed to the superior court, where issues of fact were tried before a jury, and from verdict in favor of the will and codicils contestants appeal, alleging exceptions. Exceptions overruled.
Albert F. Barker, of Brokton, Fredk. C. Swift, of Yarmouth, and Theodore W. Bisbee, of Brockton, for appellants.
Heman A. Harding, of Barnstable, and Walter Welsh, of Provincetown, for petitioner.
The only question is whether there was error in the exclusion of declarations made by a deceased person and offered in evidence under R. L. c. 175, § 66.
During the trial of issues involving the soundness of mind of alleged testator, and undue influence alleged to have been exercised upon him by Semira D. Ellis, Lelia M. Ellis, and John D. W. Bodfish in procuring the execution of a will and codicils, Harriet A. Fisher was examined concerning a statement claimed to have been made to her by her brother, Roland J. Green, who had died in the lifetime of the testator. An offer of proof was made that the brother had said to the witness that the testator had asked him to tell her that he would like ‘to come and see her, but the Ellises would not let’ him.
If the brother had been living and had been a witness, his evidence to that effect clearly would have been admissible, the statement having been made within the period to which testimony had been limited by the judge. There had been introduced evidence of impaired mental condition and undue influence by Semira D. Ellis and Lelia M. Ellis, sufficient to furnish a basis for the admission of the statement.
The statute requires a preliminary finding by the court, that the declaration offered ‘was made in good faith before the commencement of the action and upon the personal knowledge of the declarant.’
The presiding justice, who excluded the evidence, found at the preliminary hearing required by the statute, that the deceased brother made the statement to the witness, and said: ‘Beyond that I am not satisfied.’ He did not find that the statement was made in good faith. On the record, this action connot be said to be...
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...Railway, 215 Mass. 318, 102 N. E. 417;Ames v. New York, New Haven & Hartford Railroad, 221 Mass. 304, 108 N. E. 920;Bodfish v. Cross, 235 Mass. 428, 126 N. E. 655. Such findings commonly rest upon the observation of witnesses and a determination by the trial judge of their capacity to compr......
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