Clifford v. Taylor
| Decision Date | 08 January 1910 |
| Citation | 204 Mass. 358,90 N.E. 862 |
| Parties | CLIFFORD v. TAYLOR. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jan. 8 1910.
Wm H. Osborne and Wm. G. Rowe, for petitioner.
W Goddard, for respondent.
The exceptions in this case were taken during the trial of issues before a jury in the superior court, upon a petition for the probate of a will. The verdict was against the executor upon the question whether the testatrix was of sound mind, and the issue in regard to undue influence was not answered.
The appellant from the decree of the probate court was permitted to prove, by a member of the bar, that at one time he was employed in the office of Mr. Bixby, another attorney, and that the testatrix came to the office 'to have Mr. Bixby draw a will, and that Mr. Bixby told her to go up and see Dr. Borden, a Brockton physician, and that if Dr. Borden thought she was fit to make a will, come back, and he, Bixby, would make it.' The question of privileged communications between attorney and client was waived by the heirs and the executor of the testatrix. This testimony was admitted, subject to the executor's exceptions. It seems to us incompetent. It brought before the jury the fact that an attorney whom she wished to employ doubted her competency to make a will, and that his doubt of her mental capacity was so great that he virtually refused to make a will for her, unless she would bring him the opinion of a physician, whom he mentioned, that she was of sound mind. This testimony showed the opinion of a person whose opinion was not competent evidence, that she did not seem to him of such mental capacity that it was proper for him to make her will. It was, in substance, a declaration of the attorney to that effect. Neither his opinion nor his declaration of it was competent to show her mental condition. Sewall v. Robbins, 139 Mass. 164-168, 29 N.E. 650; Baxter v. Abbott, 7 Gray, 71-82. Such an opinion, so declared, would be likely to have a great influence upon a jury, prejudicial to the executor.
Often a statement made by one person to another, which is not competent in itself, is made competent by way of introduction, to give effect to language or conduct of the person to whom it is addressed. The important evidence in such a case is, what was said or done by the person to whom the statement was addressed? and the statement itself is made a necessary part of the evidence, to render the subsequent conduct intelligible. In this case there was nothing of this kind. We have the bare remark of Mr. Bixby, without anything to show what the testatrix said or did, or how she received it. This testimony should have been excluded and the exception must be sustained.
The request in regard to the appointment of a conservator was rightly refused, and the instruction given was correct. The judicial determination of the facts that must be...
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