Hardy v. Merrill

• Decision Date: 14 December 1875
• Citation: 56 N.H. 227
• Parties: Hardy v. Merrill.
• Court: New Hampshire Supreme Court

56 N.H. 227

Hardy v. Merrill.

Supreme Court of New Hampshire

December 14, 1875

Evidence---Opinions of non-professional witnesses---Insanity---Practice---Right to open and close.

Non-professional witnesses, who are not subscribing witnesses to a will, may testify to their opinions in regard to the sanity of the testator, when founded upon their knowledge and observation of the testator's appearance and conduct. Boardman v Woodman, 47 N.H. 120, State v. Pike, 49 N.H. 399, and State v. Archer, 54 N.H. 468, upon this point, overruled.

The party who affirms that a will was duly and legally executed has the burden of proof and the accompanying duty of opening and the right to close, no matter in what form the issues for trial may be drawn

From MERRIMACK Circuit Court

APPEAL by William H. Hardy against Isaac D. Merrill, from the decree of the judge of probate approving and allowing, in solemn form,

the will of Joseph Hardy, deceased. Said will was dated July 26, 1870. Issues had been made up at the law term, and sent to the circuit court for trial by jury. The issues were in common form. In the first, the executor alleged that the said Joseph Hardy was of sound mind; and in the second, he alleged that said will was not obtained by undue influence: upon both of which allegations issue was taken by the appellant.

In the circuit court the cause had been sent to referees, who, after hearing, found both issues in favor of the executor, and made an additional report raising certain questions of law, which are as follows:

At the hearing, and before the same commenced before the referees, the appellant claimed the right to open and close. The referees ruled otherwise, and he excepted.

C. G. McAlpine, a witness for the appellant, testified as follows: "He (the testator) seemed to be all broken down [in mind and] in body." Words in biackets excluded, and appellant excepted. The same witness also testified that he tried to buy some bank stock of him (the testator) after his wife died. From that time to June, 1870, when I carried him, he had changed very much. [When I tried to buy his bank stock, I could see he was failing.] Words in brackets excluded, and the appellant excepted; but he was allowed to make the following statements, subject to the exception of the appellee: "His mind was such that he could not give any intelligent answer;" also, "At the time I carried him in 1870, he did not seem to have any memory;" also, "At the time I tried to buy his bank stock, I discovered that he had failed;" also, "His conversation was childish."

The same witness was asked, "How did his conversation, as to coherency and correctness, in June, 1870, compare with it at the time you tried to buy his bank stock?" which question was ruled out, and the appellant excepted.

Solomon Hardy, a brother of the testator, was called as a witness by the appellant, and the following questions, among others, were put to him:

1. "Being a brother of Joseph Hardy, from your observation of his appearance and conduct at the time you saw him at your house in June, 1869, state whether or not. in your opinion, he was, at the time, of sound and disposing mind and memory."

2. "Being a brother of the testator, from what you had observed as to his conversation, conduct, and general deportment as to all subjects, up to July 26, 1870, have you any opinion as to his sanity at that date, and, if so, what is it?" The referees excluded these questions, and the appellant excepted.

Josiah C. Hardy, a witness for the appellant, testified, among other things, that the "testator appeared like a failing man in every respect," which was excluded, and the appellant excepted.

Madison M. Howe, a witness for the appellant, testified that the testator "appeared like a man who did not seem to know what he was talking about half the time," which was excluded, and the appellant

excepted; but he was allowed to state, subject to the exceptions of the appellee, that "he (the testator) appeared very weak in his mind."

George B. Hardy, a witness for the appellant, stated, subject to exception of the appellee, that "he (the testator) appeared childlike---appeared feeble in body and mind---more like a child than a rational man."

Samuel C. Hardy, a witness for the appellant, testified that "it looked to me as though he was failing in his business capacity, or in his mind," which was excluded, and appellant excepted.

Lyman D. Stevens, a witness for the appellee, testified that he wrote the will in question for Joseph Hardy, at the office of the witness, and stated what said Hardy said and did on that occasion, which was some three weeks before said will was executed. He was asked the following question: "If there was anything in the conversation or conduct of Joseph Hardy, in your office, that indicated any impairment of any of his mental faculties, please state the same fully, without giving any opinion. "Ans. "I observed nothing whatever." To this question and answer the appellant excepted.

In the circuit court, at the April term, 1875, it was ordered that the questions of law raised by the report of the referees be reserved and transferred to this court for determination.

Mugridge, for the appellant

We submit that the question put to Solomon Hardy, the brother of the testator, whether he had any opinion as to the sanity of the testator when the will was made, and if so, what it was, was improperly excluded by the court.

We know that this suggestion is in conflict with certain decisions, referred to by the other side, in which this kind of testimony has been rejected; but feeling, as we do, that the existing rule on this subject is clearly wrong, we most respectfully ask the court to reconsider it, in the hope that, its fallacies appearing, it may be condemned as tending to subvert rather than promote the ends of justice, and as being no longer worthy of toleration.

The first time that the precise question now under consideration was before the court in this state was in Boardman v. Woodman, 47 N.H. 120, and the decision was then made by a divided court. The opinion of the majority of the judges in that case seems to be based on the general doctrine, recognized in some of the prior cases referred to by counsel on the other side, that ordinarily the opinions of witnesses other than experts are not admissible.

To show, however, that this rule, broadly stated as above, admits of a large class of exceptions, and was not intended by the court to be strictly applied, we cite the following cases, in which the opinions and judgments of witnesses are held to be competent under various circumstances: State v. Shinborn, 46 N.H. 501; Whittier v. Franklin, 46 N.H. 25; Taylor v. Railway, 48 N.H. 309; Eastman v. Company, 44 N.

H. 155; Hackett v. Railroad, 35 N.H. 399; Spear v. Richardson, 34 N.H. 428; Hall v. Davis, 36 N.H. 571; Patterson v. Colebrook, 29 N.H. 101; Beard v. Kirk, 11 N.H. 401; Whipple v. Walpole, 10 N.H. 130; Willis v. Quimby, 31 N.H. 489; Wheeler v. Blandin, 22 N.H. 170.

We wish to refer the court, also, to the learned and exhaustive dissenting opinions of Judge DOE, in State v. Pike and Boardman v. Woodman, as indicating what we claim to be the true rule of evidence, and the one abundantly supported by the weight of judicial authority.

We would suggest, that no more odious law of practice exists than the one under consideration, and that its rigid enforcement is one of the greatest embarrassments and hindrances in the administration of justice that can be found in the practice of this state.

To render evidence as to mental condition competent, it must be purely and essentially descriptive in its character; and any statement partaking at all of the nature of an opinion is at once rejected. By witnesses who are not capable readily of making that accurate discrimination required to keep opinion and fact, oftentimes so intimately blended, separate in testifying, the rule is most difficult of comprehension, and much testimony is many times excluded on account of the inability of the witness to make the true distinction demanded.

To illustrate: Mr. McAlpine, in testifying, is not allowed to say that the testator "seemed to be all broken down in mind and body," because he was giving an opinion, and this testimony was excluded on that account; he was, however, permitted to say that "his conversation was childish," because that is held not an opinion, but mere description of his condition. He could not say that when he tried to buy his bank stock he "could see he was failing," but might say that at that time he "discovered that he had failed." One witness, Mr. McAlpine, was allowed to testify that he discovered at one time that the testator "had failed;" but the evidence of Josiah C. Hardy, that the "testator appeared like a failing man in every respect," was excluded as incompetent. Mr. Howe, another witness, could not state that the testator "appeared like a man who did not seem to know what he was talking about half the time," but was allowed to say that "he appeared very weak in his mind." To call upon ordinary witnesses to exercise that nicety of discrimination and refinement of learning necessary to make those bewildering distinctions required by the law, as appear by the above rulings made in the trial of this case, as the printed case shows, is simply ridiculous; it not only tends greatly to disconcert and hinder the witness in giving his evidence, but it makes the trial of any cause, governed by such a rule, a mere travesty upon the administration of justice, in the estimation of all sensible persons.

Again we suggest that a class of evidence, which would with every intelligent jury be the most satisfactory, is now peremptorily excluded. A parent, bro...