McCoy v. Jordan
| Decision Date | 06 January 1904 |
| Citation | 184 Mass. 575,69 N.E. 358 |
| Parties | McCOY et al. v. JORDAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Robt. M. Morse and Wm. M. Richardson, for plaintiffs.
Geo. L Huntress and Sherman L. Whipple, for defendant.
The first question to be considered upon these bills of exceptions is whether there was error of law in the admission or exclusion of evidence. At the time of his death in September, 1898, the testator was about 84 years of age. The will in question was executed in April, 1895. It was contended by the appellant that he was not then of sound mind, but was afflicted with senile dementia, a progressive disease, which continued to the time of his death. Without objection by either party, the court fixed January 1, 1897 as the time up to which witnesses might testify of their observation of him in regard to his appearance and conduct and apparent condition. The determination of the question how far subsequently a party may go for testimony to show a person's mental condition at a given time must be left very largely to the discretion of the presiding justice, and there is nothing to indicate that this discretion was not wisely exercised in the present case. Shailer v. Bumstead, 99 Mass. 112-130; Com. v. Pomeroy, 117 Mass. 143-148; Lane v. Moore, 151 Mass. 90, 23 N. A. 828, 21 Am. St. Rep. 430. The appellant asked the attending physician to testify of what disease the testator died. The question was excluded, and the appellant excepted. This question related to the condition of the testator more than a year and a half after the date by which the testimony of other witnesses as to his condition was limited, and nearly three years and a half after the execution of the will. The admissibility of the evidence was urged at the trial on the ground that it would be a foundation for expert testimony tending to show, from his condition at the time of his death, that this progressive disease was upon him, and made him of unsound mind, at the time of the execution of the will. We are of opinion that the testimony was rightly excluded. It was not the duty of the judge to receive it merely because an expert would testify that, in his opinion, it had some significance.
The other questions of evidence involve a consideration of the rule as to testimony of nonexpert witnesses in regard to the mental condition of a testator. The rule in this commonwealth differs from that in some places, but it has long been well established, and this court has repeatedly refused to change it. Such witnesses are not permitted to give their opinion in regard to the mental condition of one whose sanity is called in question. May v. Bradlee, 127 Mass. 414; McConnell v. Wildes, 153 Mass. 487, 26 N.E. 1114; Smith v. Smith, 157 Mass. 389, 32 N.E. 348; Clark v. Clark, 168 Mass. 523, 47 N.E. 510. Good reasons can be given for and against the rule, which we need not now consider. In the practical application of it difficulties are encountered when we attempt to draw the line between facts which indicate a mental condition and a statement of the condition itself, and especially when we try to discriminate between facts given by way of description, which necessarily involve in their statement more or less of opinion as to familiar objects and well-known matters, and the inferences and deductions from these facts, which take the form of direct opinion as to the mental condition of the person. An exception to the ordinary rule that witnesses cannot give their opinions in testimony allows them to state their judgment and estimate as to many things, such as the size, weight, or color of objects, and the measurement of time or space. Com. v. O'Brien, 134 Mass. 198; Com. v. Sturtivant, 117 Mass. 122-133, 19 Am. Rep. 401; O'Neil v. Hanscom, com, 175 Mass. 313, 56 N.E. 587. Questions to such witnesses, bearing upon the mental condition of a testator, should be so framed as to call for facts and not for opinions. These facts involving a narration and description of appearances and conduct and conditions, may be such as cannot be given without including some element of opinion that comes within the exception stated above. 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 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 question of the appellant to Mrs. French, 'From these facts, * * * what do you infer in your own mind as to Mr. Jordan's mental capacity?' was rightly excluded. It called directly for the inference and opinion of the witness as to the testator's mental capacity. The questions put by the executor, 'Whether you noticed any failure of memory?' 'Did you every notice anything to indicate that he was not of sound mind?' were competent. They directed the attention of the witness to what he had noticed by way of external indications in regard to an internal condition, and they were put for the purpose of proving a negative. The question to Goodrich, 'Whether or not you noticed any failure of intelligence on his part?' and the question to Hall, 'Was his memory good or bad?' might be interpreted as calling for nothing but observation of external manifestations. It would be possible to interpret them as calling for an opinion as to the testator's mental condition. It would be easy for a judge directing the course of a trial to deal with such questions by requiring modification or explanation, or otherwise, in such a way as to preserve the rights of the parties, and leave no doubt as to the competency of the testimony admitted. The answers to these questions in the present case show that the inquiries were treated as calling for the observation of the witness, and in each answer the witness referred to what he had seen. There was no error in admitting the testimony as given in the answers. Barker v. Comins, 110 Mass. 477-487; Nash v. Hunt, 116 Mass. 237. One Middleton was asked, 'When you last saw Mr. Jordan, what facts did you observe as to his powers of comprehension, mental grasp, coherency, power of reasoning, memory, intelligence, will, and accuracy?' A similar question was put to one Kelley. The first witness answered, 'His powers seemed to be complete and perfect.' The second witness answered, 'So far as I remember, each time that I saw Mr. Jordan I should say that he was in possession of clear faculties and mental powers.' These questions called only for the facts observed by the witnesses in reference to a stated subject. Neither of the answers was responsive. Neither witness stated anything that he had observed, but each volunteered a statement of his opinion as to the testator's condition of mind. It is hardly possible to conceive to a statement more directly presenting such an opinion than each of these answers. The appellant objected to each of the answers, and moved that it be stricken out. The court admitted them, and the appellant excepted. There is no case in this commonwealth that is a precedent for the ruling. The great reluctance of this court to set aside a verdict on account of the admission or rejection of some piece of evidence of slight importance, when it seems improbable that a different ruling would have changed the result, has often led to an adoption of the interpretation of the presiding judge when there is doubt as to the construction that should be put upon the testimony in reference to its competency. This has often been illustrated when it was uncertain whether the witness was giving an account of external indications or a statement of his opinion as to a mental condition. In the present case there is no room for such doubt, and we are of opinion that the evidence ought not to have been admitted.
The appellant contends that there was error in the proceedings after the case had been given to the jury. After the jury had been in deliberation about 20 hours, they were sent for by the presiding justice,...
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