Howes v. Colburn

• Decision Date: 29 February 1896
• Citation: 165 Mass. 385,43 N.E. 125
• Parties: HOWES et al. v. COLBURN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

165 Mass. 385

43 N.E. 125

HOWES et al. v. COLBURN et al.

Supreme Judicial Court of Massachusetts, Norfolk.

February 29, 1896

COUNSEL

John D. Long and Clapp & Glover, for plaintiffs.

Geo Fred. Williams and G.W. Anderson, for defendants.

OPINION

ALLEN J.

1. It was necessary, according to our practice, for the executors to call all the attesting witnesses, they being accessible. Chase v. Lincoln, 3 Mass. 236; Sears v Dillingham, 12 Mass. 362. But there is no rule of law which requires them all to be examined at the outset. The order in which witnesses shall be called is a matter of discretion with the court. Cushing v. Billings, 2 Cush. 158; Com. v. Moulton, 4 Gray, 39; Liverpool Wharf v. Prescott, 4 Allen, 22; Com v. Dam. 107 Mass. 210. All of the attesting witnesses were called by the executors before closing their case in chief. The contestants say, in their brief, that the executors were allowed to read the will to the jury after the testimony of only one attesting witness. No such fact appears in the bill of exceptions. If it were true, no objection to this course was then pressed. The other two witnesses were then engaged in court elsewhere, and it was understood that they would be called afterwards. If, under these circumstances, the will was read to the jury without objection, and the trial proceeded, the subsequent introduction of the other two attesting witnesses gave to the contestants all that they were entitled to have. The bill of exceptions states that, two days after the first attesting witness had been called, and while the executors were engaged in putting in their case in chief, the contestants objected to their proceeding further until they should call the other attesting witnesses, or account for their absence. This objection was properly overruled. The bill of exceptions states that the executors agreed that the contestants should have the same benefit of this objection, which was taken on the third day of the trial, that they would have had if they had made it at the conclusion of the testimony of the first attesting witness. The counsel for the contestants argues, from this, that he now has an exception to the reading of the will to the jury at the time it was read, although it was actually read without exception or objection. We can give no such effect to such an agreement of counsel.

2. The court limited the introduction of evidence tending to show specific acts of unsoundness of mind on the part of the testator to a period from about 8 years before the date of the will to about 21/2 years after its date. This was within the power of the court to do, and its power in this respect was not taken away by the fact that expert witnesses for the contestants thought a better judgment as to the testator's soundness of mind could be formed if these limits were extended. It has been declared, heretofore, that such testimony must be sufficiently near, in point of time, to aid in determining the testator's condition at the time of making the will, and that this is a matter for the court to determine. White v. Graves, 107 Mass. 325; Shailer v. Bumstead, 99 Mass. 112, 130; Com. v. Pomeroy, 117 Mass. 143, 148; Lane v. Moore, 151 Mass. 87, 90, 23 N.E. 828; Dumanque v. Daniels, 154 Mass. 483, 486, 28 N.E. 900. In the present case the trial was a long one, the period fixed appears to have been sufficiently liberal, and, but for the limitation put upon the introduction of evidence, the trial might have consumed an unreasonable length of time. No exception can be sustained to the exclusion of the testimony relating to times outside of the limits so fixed.

3. It was within the discretion of the court to allow the questions put in cross-examination of the expert witness called by the contestants. A long hypothetical question had...