White v. Mcpherson

• Decision Date: 18 June 1903
• Citation: 67 N.E. 643,183 Mass. 533
• Parties: WHITE v. McPHERSON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

183 Mass. 533

67 N.E. 643

WHITE v. McPHERSON et al.

Supreme Judicial Court of Massachusetts, Essex.

June 18, 1903

COUNSEL Peters & Cole, for plaintiff.

Chas W. Bartlett and Frank D. Allen, for defendants.

OPINION

MORTON, J.

This is an appeal from a decree of the probate court disallowing a certain instrument offered as the last will and testament of one Thomas Herty. The usual issues were framed, and the case was sent to the superior court for trial. The jury returned a verdict sustaining the will, and the case is here on exceptions by the contestants to the refusal of the presiding judge to give certain rulings and instructions, and to the admission of certain expert testimony. We think that the ruling and the refusal to rule were right.

1. The rulings and instructions asked for were as follows 'Weakness of mind arising from advanced age in connection with causes suggested in this case, is progressive and permanent in character. It exists in the mind itself, and therefore it is that weakness of mind at the time of making the will may be inferred from weakness subsequent, as much so as imbecility of mind under similar circumstances.' Whether the weakness spoken of was 'progressive and permanent' was a question of fact for the jury, and not a matter of law for the court. The rest of the instructions requested also related to questions of fact rather than of law. For these reasons, the instructions requested were rightly refused. The exceptions recite that 'the court gave instructions to the jury upon all the issues involved in the case, to which no exceptions were taken by either party except as above,' meaning the instructions requested as above. In view of this statement it is to be presumed that the court gave proper instructions as to what constituted soundness and unsoundness of mind, and that the only ground of complaint which the contestants had was the refusal to give the instructions that were requested.

2. One Dr. Croston was allowed to testify that in his opinion the testator was sane. The testimony was objected to on the ground that the witness was not qualified as an expert, that being the ground on which the testimony evidently was admitted. Whether a witness called as an expert has the necessary qualifications is, in the first instance, a matter for the judge presiding at the trial to pass upon, and his decision will not be reversed unless clearly erroneous. Toland v. Paine...