O'Connell v. Dow
| Decision Date | 24 February 1903 |
| Citation | 66 N.E. 788,182 Mass. 541 |
| Parties | O'CONNELL v. DOW et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Hiram P. Harriman, for petitioner.
Burke & Corbett, for St. John's Hospital.
Johnson & Johnson, for contestants.
This case is before us on exceptions taken at the trial by a jury of issues on an appeal from the allowance of a will by the probate court. The will was attested by five witnesses, and among others by the petitioner, O'Connell, who was named in the will as executor. The testatrix was a widow, 69 years of age, who had been twice married. In each of the first two clauses of the will a nominal sum is left to a son by her first husband. The wearing apparel of the testatrix is then disposed of. After that, provision is made for a monument at her grave and for the perpetual care of it. The will, as it stood before any words were stricken out or interlined provided that her brother, William H. Webster, and his heirs should have her farm and the personal property on it; and after a further legacy to the same brother, and a gift of silver spoons to another relation, comes a clause appointing the petitioner executor; and after that a clause making St. John's Hospital a residuary legatee, including what was left of the property given to her brother undisposed of by him at his death. The words 'and his heirs' were stricken out of the gift to her brother of the farm and the personal property on it, and by words written in after the will was first written, as is apparent from the way that they are crowded together, the brother was given a power of disposing of the farm and other property thus left to him for life, if necessary for his support. The jury found on the second issue that the will was procured in part by fraud and undue influence of the petitioner, and specified as that part the words cutting down the gift to her brother to a life estate, with a power of disposing of the principal for his support, but only if necessary for his support, and the whole residuary gift to St. John's Hospital. In answer to the third issue, to wit: 'Was the instrument offered for probate executed by Martha E. Wyman as and for her last will and testament?' the jury answered, 'Yes, with the exception of that portion claimed to be added by undue influence in answer to question 2.' The residuary legatee took part in the trial, and the exceptions before us were taken by it, as well as by the petitioner. For convenience we shall speak of them as the exceptions of the petitioner, and shall speak of the arguments made by both as the arguments of the petitioner.
1. The first exception taken by the petitioner is to the ruling made by the presiding judge that all the attesting witnesses must be called by the petitioner. At the trial the four attesting witnesses other than the petitioner were called, and the petitioner then offered to rest; but the judge ruled that 'the petitioner, being an attesting witness, must also testify.' The petitioner was in court at the time. The petitioner seeks to take this case out of the established rule that all the attesting witnesses to a will must be called (Chase v. Lincoln, 3 Mass. 236; Howes v. Colburn, 165 Mass. 385, 43 N.E. 125) on the ground that the statute of wills requires only three, and, if three are called, the statute is satisfied. But the provision of the statute is that the will shall be 'attested and subscribed * * * by three or more competent witnesses.' Without deciding that, if a testator elects to have a will attested by five in place of three witnesses, all five become attesting witnesses, and must be produced, under the rule that all attesting witnesses must be called, it is enough to dispose of this case that the presiding judge in his discretion could require the proponent of the will to call O'Connell, who was in court.
2. The second exception is to the ruling of the presiding judge that the attesting witness could be cross-examined on the whole case. The general rule that a witness in this commonwealth can be cross-examined on the whole case is too well established to require discussion. Blackington v. Johnson, 126 Mass. 21. There is no difference in this respect between a witness who is called because he had attested an instrument, and solely to testify as an attesting witness, and one called because he has otherwise acquired knowledge of material facts. Beal v. Nichols, 2 Gray, 262.
3. The next exception is to the admission in evidence of the record of the conviction of the petitioner for being accessory to the crime of bribery. The presiding judge, in admitting the record in evidence, said: 'I shall instruct the jury that, as an attesting witness, present at the execution of the will, and affixing his signature as a witness, the record introduced cannot affect his testimony as an attesting witness, and that the jury will in no way consider it on that aspect of the case, and it is only admissible on other aspects of the case, when he testifies in other respects than as an attesting witness,'--and in charging the jury he repeated this instruction. This is based on a misapprehension of the effect of Rev. Laws, c. 175, § 23. The exception provided for by that section was originally enacted as an exception to the act abolishing the rule that a witness was rendered incompetent if he had been convicted of a crime or had an interest in the litigation (St. 1851, c. 233, § 97); and the effect of the exception in that act and in the present law is to leave to the common law the competency of a witness to subscribe a will as an attesting witness ( Sparhawk v. Sparhawk, 10 Allen, 155, 156; Sullivan v. Sullivan, 106 Mass. 474, 475, 8 Am. Rep. 356; Pease v. Allis, 110 Mass. 157, 14 Am. Rep. 591; Hitchcock v. Shaw, 160 Mass. 140, 141, 35 N.E. 671), and to leave to the statutes as to the competency of witnesses generally the question whether an attesting witness can give testimony on the stand (Wyman v. Symmes, 10 Allen, 153). St. 1851, c. 233, § 97, abolishing the rule that witnesses who have been convicted of crime or have an interest are not competent witnesses, was taken from 6 & 7 Vict. c. 85, § 1 (see Hall's Mass. Practice Act, 194); and, although the provision that the new rule should not apply to attesting witnesses to a will is substantially like the exception in the English act, the effect of the two is quite different. The exception in the English act is that the new rule shall not repeal the provisions of 7 Wm. IV & 1 Vict. c. 26, being an act for the amendment of the laws with respect to wills. That act provided in section 14 that if any person who shall attest the execution of a will shall, at the time of execution thereof or at any time afterwards, be incompetent to be admitted a witness to prove the execution thereof, such will shall not on that account be invalid. The effect of the exception on the English act was to leave this provision of the act as to wills unchanged, and the result was that, if an attesting witness had an interest or had been convicted of an infamous crime, the will was good under 7 Wm. IV & 1 Vict. c. 26, § 14, and he could testify on the stand under 6 & 7 Vict. c. 85, § 1, while in Massachusetts, inasmuch as the provisions of 7 Wm. IV & 1 Vict. c. 26, § 14, have not been adopted, the will is invalid unless it is subscribed by three other attesting witnesses who are competent, but the attesting witness can testify on the stand.
A man convicted of an infamous crime is not a competent witness at common law (Com. v. Rogers, 7 Metc. 500, 41 Am. Dec. 458; Wilde, J., in Utley v. Merrick, 11 Metc. 302); and that is the rule under our statutes as to the competency of a witness to subscribe a will as an attesting witness. See Sparhawk v. Sparhawk, 10 Allen, 155, 157. Bribery is punishable by imprisonment in the state prison (Rev. Laws, c. 210, § 6), and one who is accessory before the fact is punishable in the same way (Id. c. 215, § 2), Being punishable in the state prison, it is a felony (Id. c. 215, § 1); and, being a felony, it is an infamous crime, within the rule of the common law which renders a person convicted of an infamous crime incompetent to testify. The conviction of the petitioner was not admissible to show that the petitioner was not competent to subscribe the will as an attesting witness. That fact was not involved in the three issues then on trial. But the conviction was admissible as affecting the credibility of the petitioner as a witness who had given testimony on the stand. The only exception taken was to the admission of the record in evidence. No exception was taken to the statement made by the judge at the time and repeated in the charge to the jury. We do not mean to decide that, if an exception had been taken to it, it would have been sustained. The instruction was, under any construction, too favorable to the petitioner.
4. The next exception is to the identification of the petitioner as the Bernard D. O'Connell who was the respondent to the petition of Charles Cowley for his disbarment. This question followed the question whether he was the O'Connell convicted of being accessory to the crime of bribery. After these questions had been answered, the presiding judge admitted the record of the conviction of bribery, and excluded the record of the 'latter'; that is the record of the petition for disbarment. Until the petitioner had been identified as the O'Connell who was disbarred the question of the admissibility of the record of his disbarment could not be raised, and no exception lies to the admission of the preliminary question asked to raise the question as to the admissibility of the record. The record of the disbarment of O'Connell was excluded. If the petitioner thought that his...
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