McConnell v. Wildes

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: C. ALLEN, J.
• Citation: McConnell v. Wildes, 153 Mass. 487, 26 N.E. 1114 (Mass. 1891)
• Decision Date: 03 April 1891
• Parties: MCCONNELL et al. v. WILDES.

153 Mass. 487

26 N.E. 1114

MCCONNELL et al. v. WILDES.

Supreme Judicial Court of Massachusetts, Suffolk.

April 3, 1891

COUNSEL

J.T. Wilson, for appellant.

Shattuck & Munroe, for appellees.

OPINION

C ALLEN, J.

1. Evidence of statements made by Caroline M. Wildes, after the death of the testatrix, was properly excluded. At that time she could not, if she had wished to do so, prejudice the rights of legatees under the will by admissions or express declarations that she had procured the execution of the will by force or fraud. Shailer v. Bumstead, 99 Mass 112, 127, 129.

2. It is for the presiding justice primarily to decide whether sufficient search for a lost document has been made to render secondary evidence of its contents admissible. The evidence of such search in the present case was sufficient to warrant the admission of testimony as to the contents of the lost will. 1 Greenl.Ev. § 558.

3. The objection that there was no proof of the formal execution of the earlier will was not distinctly taken at the trial, but if it had been it could not have prevailed. If the paper had been a mere draft or memorandum prepared by the testatrix showing her intentions or wishes at that time as to the disposition of her property, the contents of it might properly be proved in evidence, as bearing upon the question of her soundness of mind, and also upon that of undue influence. The fact that it was in the form of a will, which apparently had been executed by her, did not render its contents any the less admissible for that purpose.

4. The admission of the paper produced by Caroline M. Wildes was competent, for similar reasons.

5. The question to Mr. Sprague, whether he had observed any fact which led him to infer that there was any derangement of intellect in the testatrix, was in the form allowed by the...