Ware v. Ware

• Decision Date: 01 June 1831
• Citation: 8 Me. 42
• Parties: ABEL WARE, Appellant from a decree of the Judge of Probate, v. JOHN WARE, Executor, & c
• Court: Maine Supreme Court

8 Me. 42

ABEL WARE, Appellant from a decree of the Judge of Probate, v. JOHN WARE, Executor, & c

Supreme Judicial Court of Maine, Somerset

June, 1831

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THIS was an appeal from a decree of the judge of probate, establishing and approving the will of John Ware, deceased; and an issue was formed to the country upon the question of the sanity of the testator at the time of executing the will. After the issue was joined, the appellant filed a motion in writing, admitting that the burden of proof was on him, to show that the testator was not of sane mind, and thereupon praying that he might have the opening and closing of the cause; which was overruled by Weston, J., who sat at the trial.

When the cause came on to be tried, the judge directed it to be put to the first jury, the second jury having had the trial of the preceding cause. The foreman of the first jury, on being called, requested to be excused from sitting in the cause, having formed and expressed an opinion upon the merits; and he was accordingly excused. There being a supernumerary juror, the clerk was directed to call him upon the jury; but the counsel for the appellee objected to him, stating that he had been in a situation to hear much of the cause, and had probably formed an opinion. The juror, however, said that he had not; but he being still strongly objected to, and the whole of the second jury being in attendance, the judge, wishing to have an unobjectionable jury impanelled, directed the clerk to call over the first juror on the second panel, who was the foreman, and who accordingly sat as a juror in this cause. To this the counsel for the appellant objected, insisting that the supernumerary ought to have been impanelled. Afterwards a juror was called to whom the counsel for the appellant objected. Upon inquiry, no legal cause of challenge appeared; but the counsel expressing a strong desire that another juror should be substituted, it was done, his place being supplied by the next man on the second panel. The jury, thus formed, tried the cause.

Dr. Greene, the attending physician of the testator in his last sickness, being called by the appellant, testified to certain acts and declarations of the testator, tending to show the unsoundness of his mind. Upon the cross examination he was asked whether he had stated to any one that the testator had his senses as well as ever; and whether he had uniformly so stated. He replied that he had stated to some persons, that when his mind was fixed on business he appeared regular and correct; but that to others, in whom he had confidence, and who would not report it to the testator, he had stated his real opinion, that the testator was not of sound mind; and he referred to Messrs. Fargo, Pike, Heath, and Hamlet. The counsel for the appellee then asked the witness, if he had ever stated that the appellant could not break the will, because the testator was of sound mind; or that the testator was capable of making a will; or that his mind was bright and clear. To these several questions the witness answered, that he did not recollect that he had ever so said. To all these questions the counsel for the appellant objected as improper to be asked; but the judge overruled the objections. He also permitted the appellee to ask the witness, whether he had said that it would make a thousand dollars difference to him whether the will was established or not; to which he replied in the negative, the appellant objecting to the question.

Dr. James Bates, another witness for the appellant, testified that he had visited the testator during his last sickness, and stated what he saw, and heard him say. On the cross examination he was asked, whether he had told any person that whenever he saw the testator he was of sound mind; which he answered in the negative; the appellant objecting to the question, and the judge overruling the objection.

The appellee called divers witnesses, whom he asked severally whether Dr. Green had stated to them at various times that the testator had his senses, -- that the appellant could not break the will, because the testator was of sound mind, -- that he was capable of making a will, -- that his mind was bright and clear, -- that he was not insane, -- that he had himself the best means of knowing the condition of his mind, and that the will could not be broken. To all which questions the appellant objected, but the judge overruled the objections. The questions were all answered affirmatively by some of the witnesses, in the course of the testimony.

The appellant offered to prove, by the persons to whom Dr. Greene referred, that he had repeatedly stated to them in confidence, during the last sickness of the testator, that in his opinion the testator was not of sound mind. But this testimony, being objected to, was rejected by the judge.

The appellee was permitted to prove that the appellant, within two or three weeks previous to the death of the testator, said that he had his senses. He was also permitted to prove that Dr. Bates had declared that the testator's mind was sound when he saw him; though all this evidence was objected to as improper to be offered.

The counsel for the appellant offered to read to the jury portions of several books of established reputation as medical authorities, and others upon the subject of medical jurisprudence; particularly, Cooper's Medical Jurisprudence, Johnson on the Liver, Darwin's Zoonomia, Thomas's Practice, Rush on the Mind, Good, Gregory, and others, to guide and instruct the jury on the subject of insanity, the diseases of the mind and of the body, and the sympathy between the body and its organs and the mind, and the symptoms attendant upon insanity; all which books the judge rejected, but permitted medical gentlemen on the stand to state their opinions upon these subjects, whether derived from books or from their own experience.

The appellant, having proved that one John Jones was insane, offered to read certain letters written by him while in that condition; which the judge did not admit, the other party objecting to them. Another witness for the appellant testified, that during the last sickness of the testator, Deacon Spaulding, one Fletcher, the executor, and the witness being together in the store of the executor, under the chamber where the testator was, Spaulding expressed a wish to go up and see him; but Fletcher said " it was of no use," assigning a reason; and the executor immediately responded " no, it is of no use." The appellant proposed to ask the witness what the reason was which Fletcher assigned; but this being opposed, was not permitted.

The judge was requested, by the counsel for the appellant, to instruct the jury, that if an illusion was fixed upon the mind of the testator as a reality, for months before and up to the time of executing the will, and his conduct was at any time influenced by such illusion, he was not of sane mind: -- That if the testator was under a continued delusion for months previous and to the time of the execution of the will, and during that time believed an illusion of the imagination to be a reality, he was not of sane mind: -- And that if he really, for months before and up to the time of executing the will, believed that he was repeatedly visited by a superhuman being, whom he saw, felt, heard and conversed with, as some of the testimony tended to show, then he was not of sane mind. But the judge instructed the jury that the law, upon the facts assumed by the counsel for the appellant, had laid down no certain rules, and prescribed no deductions necessarily to be made from them; but that these facts, if proved, together with the other testimony in the case, must be left to their sound discretion as a matter of evidence, from which to determine the issue before them.

In summing up the cause to the jury, after calling their attention to the other evidence on both sides, the judge adverted to the testimony adduced to contradict what had been stated by Dr. Greene; remarking to them that this was not of an affirmative character; but that if it had been, and if Dr. Greene, who, as the attending physician of the testator during his last sickness, had the best means of knowing the condition of his mind, had testified as a witness, if it had been competent for him so to do, that his mind was perfectly and uniformly sound, it would have been testimony of great importance in the cause, calculated to afford much light upon the question before them; and that his declarations to others to this effect, though short of this proof, and being introduced to impeach his testimony rather than to establish fact affirmatively, yet being in the case, should be considered by them in connection with the other testimony.

The jury found that the testator, at the time of making the will, was of sound mind; and it was agreed that the verdict should be deemed conclusive upon that point, in favor of the executor, unless the court should be of opinion that by reason of any of the decisions or instructions of the judge at the trial, the verdict ought to be set aside.

Sprague, for the appellant, argued in support of the following positions: --

1st. The court had no power ex arbitrio to set aside a juror regularly called. The supernumerary juror was thus called and though he wished to be excused, yet he showed no legal cause; and the appellant insisted on his sitting. But the judge set him aside, and ordered another to be called. For this he had no power at common law; which sets no juror aside but upon regular challenge. Tidd's Pr. 779, 781. 3 Bl. Com. 359, 363. 1 Salk. 152, 338. Nor is such power given by the statute...