Sewall v. Robbins

• Decision Date: 03 March 1885
• Citation: 29 N.E. 650,139 Mass. 164
• Parties: SEWALL v. ROBBINS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

139 Mass. 164

29 N.E. 650

SEWALL

v.ROBBINS et al.¹

Supreme Judicial Court of Massachusetts, Middlesex.

March 3, 1885.

Exceptions from supreme judicial court, Middlesex county; HOLMES, Judge.

Samuel E. Sewall, executor of Caira Robbins, offered for probate her will dated May 13, 1881. The probate of this will was resisted by Lizzie G. Robbins and another, but a decree admitting it to probate was rendered. Lizzie G. Robbins and others bring exceptions. Exceptions overruled.

The issues made were: (1) Whether the alleged will was duly executed; (2) whether, at the time of its execution, testatrix was of sound and disposing mind; (3) whether she was unduly influenced. Appellants offered in evidence the deposition of Eli M. Robbins, taken in the case of the attempted probate of a will made by the same testatrix on June 7, 1881, but it was excluded. Appellants called one Currier, the attending physician of testatrix, in regard to her condition of mind when she executed the will and during her last illness. On cross-examination, the witness having stated that he should not want to swear how many days he attended court at the former trial, the counsel for the petitioner put into his hands his certificate of attendance, and, for the purpose of testing his memory, was allowed to ask the question, “Having looked at the certificate, can you now recall the number of days you attended?” to which the witness answered, “I can't; I jumped at it.” He was then asked, “Do you know how many days you were paid for attending before this hearing?” to which he answered “Two, I think.” To both of these questions the appellants objected. Appellants offered the declarations of Sylvia Holbrook, a deceased attesting witness, as to testatrix's capacity, but they were excluded.

S.W. McCall and N.L. Graffam, for appellants.

E.R. Hoar and S. Hoar, for executor.

FIELD, J.

The counsel for the executor, after having called such of the attesting witnesses as were alive, and thus proved the formal execution of the will, was permitted by the judge to read the will to the jury, to which the appellants objected, on the ground that a subsequent will containing a revoking clause had been found by a jury to have been duly executed. The record of the case in which the validity of the subsequent will was determined was not then in evidence. It was subsequently put in evidence, and showed that the decree of the probate court, admitting that will to probate, had been reversed, because a jury had found that, although it was duly executed, and its execution was not procured by undue influence, the testatrix at the time of its execution was not of sound and disposing mind. At the time the objection was made, there was no fact in evidence that supported it, and it was properly overruled. Besides, the facts as they subsequently appeared in evidence were not evidence of a revocation of the will propounded at the trial. A subsequent will, containing a clause revoking former wills, is not...