Tarbell v. Forbes

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: LATHROP, J.
• Citation: Tarbell v. Forbes, 177 Mass. 238, 58 N.E. 873 (Mass. 1900)
• Decision Date: 22 December 1900
• Parties: TARBELL v. FORBES et al.

177 Mass. 238

58 N.E. 873

TARBELL v. FORBES et al.

Supreme Judicial Court of Massachusetts, Worcester.

December 22, 1900

COUNSEL

B. W Potter and W. A. Williams, for appellants.

E. H Vaughan and John R. Thayer, for appellee.

OPINION

LATHROP J.

It appears from the bill of exceptions that the testatrix was a sister of the respondents, they being children of one Dexter Forbes, and that the testatrix was also a sister of her husband's first wife. There were two children of the first wife, namely, the petitioner, Frank F. Corliss, and Ada F. White. The testatrix had no children. At the trial it is stated in the bill of exceptions that the respondents did not deny the making of a will by Mrs. Corliss, nor the fact that the will existed after the death of the testatrix. The instrument propounded for probate, in the first clause, left a legacy of $500 to Frank F. Corliss, described as 'my stepson and nephew.' The second clause left the same amount to Ada F. Corliss, described as 'my stepdaughter and niece.' The third clause left to her husband the remainder of her property. The fourth and last clause was as follows: 'In case I outlive my husband, my property is to be equally divided between my stepson, Frank F. Corliss, and my stepdaughter, Ada F. Corliss.' The principal contention of the respondents was that the fourth clause was not in the original will, and that therefore the copy offered for probate was not a true copy.

The first exception relates to the exclusion of evidence to show that the chief part of the estate of the testatrix had come from her father's estate. It is contended on behalf of the respondents that this evidence was admissible as bearing on the question whether the testatrix would be likely to insert a clause in her will that would result in giving property that she had thus inherited to her stepchildren, rather than to her brothers. There was no contention that there was any clause in the will leaving anything to the respondents, and the beneficiaries under the fourth clause were not merely stepchildren, but were her nephew and niece. We do not know what the evidence in the case was, in support of the lost will; but we must assume that it was competent and satisfactory evidence, for there is nothing in the exceptions to show the contrary. In Davis v. Sigourney, 8 Metc. 487, 490, Mr. Justice Wilde, speaking of the admission of oral evidence to establish the contents of a lost will, said, 'Courts are bound to consider such evidence with great caution, and they cannot act on probabilities.' If courts cannot act on probabilities when the petitioner is putting in his case, it would seem to follow that they cannot act on probabilities so far as the respondents are concerned. It seems to us that it is no answer to direct evidence that a clause was in the original will to show a fact from which an argument might be addressed to a jury that a testator might probably have done otherwise than the direct evidence showed. However this may be, in the present case to have admitted the evidence would have raised a collateral issue of pure conjecture. The property belonged to the testatrix, from whatever source it might be derived. It was hers to do with as she pleased. She could leave it to her nephew and niece, or to her brothers, or to third persons, or she could die intestate. It the evidence had been admitted, it would have led into an investigation of the life of the testatrix, into how much she received from her father's estate, and whether or not she had spent it. There would also have arisen the question as to the personal relations existing between the testatrix and her brothers, and those between her and her nephew and niece. We cannot say that the judge erred in excluding the evidence, and this exception must be overruled. See Marvin v. City of New Bedford, 158 Mass. 464, 467, 33 N.E. 605.

The next exception is to the refusal of the judge to give the following instruction: 'If you are satisfied that said Ada F. White destroyed the will, and has made statements under oath, material to the issue in hearing, relative to the destruction of said will, directly opposite to and contrary to her testimony in this case, then you should consider her testimony with great distruct.' It appeared that Ada F White testified at the trial of the issues that, at the instigation of one of the respondents, she destroyed the original will, by burning it, shortly after her mother's funeral. She admitted that within a month after her mother's death she was brought before the probate court, upon the complaint of her brother, for concealing or destroying the will, and that at the hearing on the complaint she had testified that her brother had taken the will from her by force, and she had not seen it afterwards, and that she had not concealed or destroyed it. She further testified that her testimony there was false, in so far as it asserted that she had not concealed or destroyed the will. The judge instructed the jury that they had the right to take into consideration what had been said by witnesses at another time and place, in determining whether they were telling the truth or not; that inconsistent statements made elsewhere were properly admissible, not for the purpose of establishing those statements as being correct statements of fact, but for the purpose of affecting the degree of credibility to be given to the witness. Further instructions were given on this point, and the jury were instructed as follows: 'It is always competent, as I have said, to show that a witness had elsewhere made different statements from that made on the stand; and, when evidence of that fact is put before you, you are to take it into consideration in determining, not whether the statement made elsewhere is true, but in determining whether the statement made here is true. By way of illustration, it may be that a person elsewhere has made certain statements as to a fact, and then comes here and makes an entirely different statement of that fact, and admits that elsewhere he had made contradictory ones. You might be entirely satisfied that the statement made here is true, and, if so, it is to govern you. On the other hand, you might, from the appearance of the witness, and all the facts and circumstances, be satisfied that the statement made elsewhere is true, and that made here is untrue. It is entirely a question for you as to what effect it will have upon you here. You are to take into consideration all the circumstances, in determining whether or not this statement is a correct statement.' We are of opinion that the instructions given were correct, and that the judge properly refused to give the instruction requested. It would have been improper to tell the jury that the testimony of the witness was to be considered with great distrust. The weight to be given to the testimony was entirely for the jury, and we find nothing in the cases of Gould v. Lead Co., 9 Cush. 338, 347, and Com. v. Jenkins, 10 Gray, 485, to support the contention of the respondents. Ada F. White was not a party to the...