Gorham v. Moor

• Decision Date: 28 February 1908
• Parties: GORHAM et al. v. MOOR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

197 Mass. 522

84 N.E. 436

GORHAM et al. v. MOOR.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1908

COUNSEL

A. S Littlefield and L. G. Roberts, for plaintiff.

Bates Nay & Abbott and Frank A. Appleton, for defendants.

OPINION

RUGG J.

These exceptions relate to trial of issues as to undue influence and soundness of mind of Mary Ann Gowen in the execution of her last will.

1. Several witnesses other than the attesting witnesses of the will and the testatrix's family physician were asked, in substance, the question whether they ever saw the testatrix do, or heard her say anything that indicated anything singular or unusual respecting her mental condition. None of these witnesses were alienists or physicians, but they all had an intimacy with the testatrix for a considerable time, and covering a period sufficiently near to the date when the will was executed to make competent their observations of facts. It was early established as the law of this commonwealth that witnesses not experts are not permitted to give their opinion in regard to the sanity of one whose mental condition is drawn in question. Exceptions, not material in this inquiry, are made in the trial of will cases as to the subscribing witnesses and the family physician of the testatrix. This court, although repeatedly asked, has always refused to change this rule, and it is not now open to discussion. McCoy v. Jordan, 184 Mass. 575, 69 N.E. 358. The difficulty in its application lies in keeping distinct the line between statements of facts, from which the jury can draw an inference as to the mental capacity of the person under inquiry, and an expression of opinion as to what the facts show. Many statements of fact involve to a greater or less extent an exercise of judgment, and they generally require observation and attention. Frequently a deduction from certain facts must be made in order to decide the fact directly in issue. To determine whether one is intoxicated or not, when nicely analyzed, demands an observation of certain facts or conditions, and an inference as to the cause of these manifestations. But the result is not a matter of opinion; it is a statement of fact. Edwards v. Worcester, 172 Mass. 104, 51 N.E. 447. The precise form of question, which is aimed to elicit a fact as distinguished from that which calls for an opinion, has frequently been considered. All the prior cases are cited, discussed and classified in Clark v. Clark, 168 Mass. 523, 47 N.E. 510, decided in 1897. Since that time question had risen, in Hogan v. Roche, 179 Mass. 510, 61 N.E. 57, where it was held that an inquiry as to whether the witness had observed in the testatrix 'any peculiarity of manner, speech or conduct' was admissible; in Ratigan v. Judge, 181 Mass. 572, 64 N.E. 204, where the question 'Was he subject to delusions or hallucinations?' was held to be incompetent, as requiring an opinion as to mental condition; and in McCoy v. Jordan, 184 Mass. 575, 69 N.E. 358, where the subject was again elaborately discussed. It was there held that the following questions were competent: 'Did you ever notice anything to indicate that he was not of sound mind?' 'Did you notice any failure of intelligence on his (the testator's) part?' 'What facts did you observe as to his (the testator's) power of comprehension, mental grasp, coherency, power of reasoning, memory, intelligence, will and accuracy?' It was further said in the course of the opinion (page 578 of 184 Mass., page 359 of 69 N. E.): 'A witness may properly be asked if he has observed any facts that have relation to the subject upon which information is sought. Such a question can usually be answered by 'Yes' or 'No.' If he answers in the affirmative, he may be asked to state what he has observed. If the purpose is to prove a negative, the question may be so framed as to direct the attention of the witness to his observation as to peculiarities of speech or manner or conduct, or anything else indicating an unusual mental condition.' The questions objected to by the contestant in the present case appear to have been framed in view of this last statement of the law, and were therefore not open to objection. See, also, Stone v. Stone, 191 Mass. 371, 376, 77 N.E. 845.

2. On issue was whether the testatrix was unduly influenced by one Gorham. He was called as a witness, and testified that he never advised or talked with the testatrix about her will, or in any way had anything to do with the making of it. On cross-examination he testified, on one day, that he did not see the will nor have any intimation of its contents so far as he remembered, until...