Emerson v. Wark

• Decision Date: 02 April 1904
• Citation: 185 Mass. 427,70 N.E. 482
• Parties: EMERSON v. WARK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

185 Mass. 427

70 N.E. 482

EMERSON v. WARK.

Supreme Judicial Court of Massachusetts, Middlesex.

April 2, 1904

COUNSEL

Hiram P. Harriman and John F. Neal, for contestant.

Geo. L Mayberry, for executor.

OPINION

LATHROP, J.

This is a petition for the admission to probate of an instrument purporting to be the last will of Harriet D. Emerson, which named the petitioner as executor. At the trial before a single justice of this court, sitting with a jury, the case was tried on three issues. The first related to the soundness of mind of the testatrix; the second, to whether the signature to the will was that of the testatrix; and the third was as follows: 'Was Harriet D. Emerson unduly influenced in the execution of said instrument by the said George W. D. Emerson?' The jury answered these questions in favor of the petitioner, and the contestant alleged exceptions.

During the trial the contestant called the petitioner as a witness and examined him. The only exception relied upon before us was to the charge of the judge in regard to this witness which was as follows: 'There is one rule on law that I ought to bring to your attention, and that is this: When a party in litigation in court puts a person upon the stand as a witness, they put him forward as a person who is entitled to credit--to be believed as a witness. In this case the contestant put George Emerson upon the stand as a witness. In doing that, they put him before you as a person who is entitled to be believed. It does not follow from that that they cannot dispute facts that he testifies to. If a party in litigation puts a person on the stand, and he testifies to something, the person that puts him on is at liberty to prove that what he says is not true; but, in putting him on, they put him before you as a person entitled to be believed. And that it is proper that you should consider in this case, in connection with what George Emerson testified to.' We are of opinion that this ruling was wrong, and was prejudicial to the contestant. It is incongruous to claim that a party who calls an adverse witness, or the other party to the cause, and who is entitled to cross-examine him because he is adverse, thereby holds him out as entitled to credit, when the only object in calling him is to obtain such evidence as may be elicited favorable to his own side. In the case at bar the adverse party was the person charged with using undue influence. It cannot be said that by calling Emerson the contestant held him out as a person entitled to credit or to be believed. This would be equivalent to saying that a witness whom the party calling him may impeach in a particular manner is nevertheless held out as entitled to credit. To ascertain the meaning of St. 1869, p. 743, c. 425, § 1 (now Rev. Laws, c. 175, § 24), it is necessary to consider the law as it existed at the time the statute was passed. It was held in the case of Adams v. Wheeler, 97 Mass. 67, argued in 1867, that, while a party could introduce evidence of any competent and material fact, though that fact had been denied by one of his own witnesses, and although the evidence might have the effect of discrediting that witness, he could not introduce evidence for the mere purpose of impeaching the credit of a witness whom he had himself produced. To meet this rule of law, St. of 1869 was passed, which, while it provides that a party producing a witness cannot impeach his credit by evidence of bad character, allows him to contradict him by other evidence, and also allows ...