Beaubien v. Cicotte

12 Mich. 459, 1864 Mich. LEXIS 45

• Court: Michigan Supreme Court
• Decided: July 15, 1864
• Status: Published

Opinion

■Campbell J. :

This case arises upon the will of Antoine Beaubien deceased, probate of which was refused in the Probate Court, and in the Circuit Court for Wayne county to which an appeal was brought. The will was opposed on the grounds of incapacity, and fraud and undue influence. The proponents now bring error, alleging that the Court below received and rejected testimony improperly.

The will was sworn to have been executed at Detroit, on the 12th day of January, 1858. The testator had been married several years to the plaintiff in error, Julia Beaubien (now re-married to Thomas Coquillard), and had no children of his own. His wife had four children, one of whom, Rose, was married to Joseph A. Moross, who, with his wife, also joins in the writ of error. The will was drawn at Mt. Clemens, in Macomb county, by Robert P. Eldredge, who drew it from memoranda furnished by James B. Eldredge. Moross visited Mt. Clemens to get R. P. Eldredge to come to Detroit and draw it. He sent his son James, who was at that time a student at law. He testifies to having received instructions from Beaubien, through Mrs. Beaubien and Moross who interpeted between him and Beaubien, witness not understanding French, which was the language in which they conversed. R. P. Eldredge the next day drafted the will at Mt. Clemens from his son’s memorandum, and gave it to Moross. This was on the day before the will is sworn to have been executed. He also gave Moross a memorandum, directing, among other things, that the attending physician of Mr. Beaubien should be present at the execution, and ask him if it was his will, and attest it as the principal subscribing witness. The persons present at the execution as witnesses were, Dr. Isaac S. Smith, Beaubien’s physician (who lived at Grosse Point about nine miles from Detroit), Ignace Moross a brother of Joseph Moross, and Francis Provost.

Dr. Smith testified in his direct examination concerning the time and circumstances of the execution of the will, and that on that occasion a servant man came to his place after him, and said Mr. Beaubien wanted he should come down, and that witness arrived at the house from ten ■ to eleven o’clock. Hpon cross examination concerning the time and circumstances of his going to Detroit, he stated; “A man, I suppose a servant, came for me the day of the execution of the will, and told me that Mr. B. -wanted me to come as soon as I could conveniently. He did not tell me to come in haste, and I did not hurry. Can't say whether the man came before breakfast; think I got to Mr. BeaubierUs about eleven o'clock.'' The next day, his ■ cross - examination continuing, he testified: “ I think that when the man came to call me on the day that ¡the will was executed, he simply stated that Mr. Beaubien wanted to see me.” He then states that the man must have come earlier than he before testified, and must have arrived at Ms house before breakfast, and by seven o’clock. Further on he testifies, “The man who came after me, at the time the will was executed, said that Mr. Beaubien wanted 1 should come down and see-, him as quick as I could.” He was then asked whether-in his examination in the Probate Court he did not testify that the man who came for him brought the message that Mr. Beaubien was very side. The. question was. objected to, but allowed under exception. Witness said it might have been so, and he might have said so. No, ■ ground for the * objection to the question is given in the bill of exceptions, but it is alleged to be irrelevant, and hearsay. We think the testimony was not objectionable. Witness on Ms direct examination had undertaken to state what the messenger told him, and it seemed to have become important to ascertain the whole circumstances attending Dr. Smith’s visit to Detroit; and whether it was hurried or deliberate. His own testimony had been somewhat inconsistent, and there would be no impropriety in suggesting to Mm — especially on cross-examination — whether he had not testified before upon the same point, in order to get at his best recollection. It can not be regarded as immaterial to ascertain all the details of -a transaction which, if not a lawful and proper testamentary transaction, must have involved an improper combination ■or conspiracy. If a will is not genuine, or is in any way improperly obtained, it is to be expected that no publicity 'will be given to the steps attending its preparation. In ■all cases, therefore, where a will is contested on any such ground, a very broad inquiry is permitted into the whole chain of circumstances attending its preparation; and the transaction must be deemed to embrace all the immediate preliminaries. It has always been held that inquiries concerning alleged frauds could not be limited by arbitrary rules, but that proof may be given of any matter at all tending to throw light upon the affair. It appears here that the instructions for executing the will contemplated that jhe physician should be sent for. The res gestae necessarily embrace this as one of the steps actually taken. What message was sent, or received and acted upon, is therefore admissible as a circumstance, which may have weight or not, as made significant or not by other proofs.

Objection was also made to allowing Dr. Smith to be ••asked whether, he did not testify on a former trial that he “said yes and no, and played good Lord and good devil, because he did not know into whose hands he might fall.” We can see no ground for any otgection to this question. It would go very directly to his fairness and .candor, and is one of those questions commonly allowed to test the value of the witness as qne" likely to afford reliable evidence to the jury.

Witness on cross- examination had stated that, some .years before, he had a conversation with Mr. Beaubien in his wife’s presence. No part of the conversation was .given, and it does not appear what it was about. Plaintiffs in error sought, upon re - examination, to ascertain what Mr. Beaubien said on that occasion. This the Court refused to permit, as the cross - examination had not covered it. This refusal was correct. It does not appear to have had any bearing whatever upon any part of the controversy, and would have been opening an entirely new field of investigation.

The proponents asked to have Joseph A. Moross and Rose J. Moross discharged from the case, upon exhibiting a renunciation by Moross of the executorship, and a quit claim from Rose to her mother of all interest under the will; and also proposed to have said Moross sworn as a. witness on such discharge. The Court refused to permit the change of parties to be made.

Whether parties who have taken an appeal from the court below, as proponents of a will, can be discharged in the appellate Court, is a question concerning which we have been referred to no satisfactory authorities. It has been held in some cases that an original probate court may discharge, in its discretion. But if the power exists, it can hardly be claimed as a matter of right.

The proponents of a will, when they appeal from the decree refusing probate, become actors responsible for costs, and shaping the issue to suit themselves. Should they all withdraw, the appeal must go down, according to the ordinary rules governing such matters. If all can not with-s draw, and all should desire to do so and yet to leave the controversy pending, it might be difficult to settle such a dispute if the right existed. The utmost that can be claimed, as we think, is that a court may use its discretion to allow a claimant to withdraw upon such terms as shall not prejudice the rest. It is intimated in Brush v. Holland, 3 Bradf. 240, that an executor can not withdraw after he has so far acted as to offer the will for probate. The question, except so far as it regards this suit, is unimportant now, because parties are no longer excluded as witnesses. If there was any power in the Cour-t to allow the application, it was discretionary, and the refusal is not, to be reviewed on error. We do not feel called upon, therefore, without further argument, to determine under what circumstances, if any, such parties may be allowed to withdraw from the controversy.

The witness, Peter P. LeFevre, having testified concerning the time when he made a visit to Beaubien before his death, counsel for contestants were allowed, under objection, to call his attention to his testimony on a former trial, in order to refresh his recollection; and this was done by referring to and reading counsel’s minutes of the former testimony.

The authorities recognize this as not improper. The modes of recalling a witness’s memory to facts which he has forgotten can not be arbitrarily restricted, and, if suspicious means should ever be used, the remedy is to be found in cross - examination and comment: — 1 Stark. Ev. 177. The precise course allowed here was permitted in Laws v. Reed, 2 Lew. Cr. Ca. 152. Mr. Greenleaf also refers to some other decisions involving the same principle: — 1 Greenl. Ev. § 436, note 3. The point was not strenuously urged upon the argument, and we think the Court below committed no error in allowing the question to be put, or in allowing the reference to the former testimony of the witness.

One Matthias Rouleau who had been a gardener in Beaubien’s employment for several years, but left him some time before his death, was permitted to testify to a conversation held with Beaubien shortly before his death, in which the deceased expressed regret at having married, and stated that he was not master at home; that he was afraid of his wife, and was compelled to submit to her demands, or otherwise there would be trouble in the house. The issue presented for trial involved questions of capacity and of undue influence. It has been held generally that the declarations of a testator concerning his feelings in regard to different persons are the best evidence of his real sentiments, where they are made sincerely and unreservedly. His feelings towards his wife, and towards the relatives of his own who would be affected by such a testamentary provision as is ' set up for allowance, must necessarily be inquired into in order to get at the true state of the case. It is said by the Court in Waterman v. Whitney, 11 N. Y. 157, that “the mental strength and condition of the testator is directly in issue in every case of alleged undue influence; and the same evidence is admissible in every such case, as in cases where insanity or absolute incompetency is alleged. It is abundantly settled that upon either of these questions the declarations of the testator, made at or before the time of the execution of the will, are competent evidence.” The question in' that case was whether the same rule would permit the proof of subsequent declarations, and it was held it would.. See also Rambler v. Tryon, 7 S. & R. 90; Lightner v. Wike, 4 S. & R. 203, We can perceive no ground upon which this testimony ean be properly excluded.

Dr. Smith, who had testified in his direct examination to the valid- execution of the will, and the capacity of the testator, was asked whether he had not, on a certain occasion, at Mr. Beaufait’s house, had a conversation with George Moran and one Page, referring to Beaubien’s death and will, and declaring that if the family should follow it up they would break the will, for it was not worth a snap of his fingers. This he denied. Moran was called upon the stand and asked whether, on that occasion, Smith made, the remark mentioned concerning the will. The question being objected to was discussed, and withdrawn to introduce some preliminary inquiries which were objected to, and which related to the preliminary conversation touching Beaubien’s death, and whether Moran had any conversation with Smith that night about the will, Smith having denied any conversation with him on any subject. The grounds of the objection were not given, but it is [now claimed that the conversation, if had, was immaterial. We think the contradiction comes properly within the rule of impeachment. When a witness testifies on the stand th'at a paper was duly executed by a. competent testator, his statement on another occasion that, the instrument was worthless, is a clear contradiction on the very essence of the issue. The case of Patchin v. Astor Mutual Ins. Co., 3 Kern. 268, where the same objection was made that is made here, that the statement was one of opinion and not of fact, is directly in point. It. was in the witness’s power, if he saw fit, admitting the-conversation, to explain that it was a mere matter of opinion, and básed upon the facts sworn to on the trial. Such a statement, however, upon so plain a matter, is usually' one which would be understood as intended to. .cover facts; and even if confined to opinion, it would,, upon a question of capacity, and coming from the attending physician and subscribing witness, be as directly material to the issue, because the witness’s opinion formed one of the most important parts of his testimony. It is difficult to conceive how a subscribing witness couíd declare a will worthless, and yet not intend to convey a statement of fact inconsistent with testimony which should show it to have been made by a man of sound mind, and acting without pressure. The preliminary questions were necessary in order to identify time and place, and the fact of a conversation. The subsequent rejection of testimony which should have been received can not affect the admissibility of this. The testimony of Trombley, to which similar objections were raised concerning preliminary questions, is express as to specific facts concerning the execution of the will, related to him by Smith, and not excluded or objected to. The preliminary inquiries were pertinent' and proper.

The testimony showing Mrs. Beaubien’s abuse of theBeaubien family, when she ascertained the contents óf a former will making provision for them, and her quarrel with her husband about it, was properly received. In all cases of this character it has been customary, as the reports. show, to allow a wide range of inquiry into the family relations, and the terms upon which they have lived. It would be impossible to obtain a clear idea concerning motives and probabilities without it. These cases, as before intimated, are determined generally upon circumstantial evidence; and it must be received upon all points tending to throw light upon the various family relations. The same remark will apply to the negative evidence that no complaint was made by Beaubien of any importunity from his natural heirs. Although of no great force alone, it had a tendency, if true, to show that her charges made to him about their rapacity did not meet with any response in his feelings, and also that he had not been driven to disinherit them by any such importunities of theirs. It was not irrelevant, and was admissible as throwing some light, however faint, upon these domestic affairs. The former wills, and other pecuniary arrangements for Mrs. Beaubien connected with them, were properly received in evidence. It is true, of course, that making one will does not, of itself, render it at all unlikely that another will may be substituted; but previous preferences and plans may have a plain bearing upon an issue, where the question arises whether the testator has understandingly, and of his own free will, changed his settled views. No case has been cited holding such proof inadmissible. It is of very frequent occurrence in the cases reported: — Hughes v. Hughes, 31 Ala. 519; 8 S. & R. 573; Love v. Johnston, 12 Ired. 355; Dodge v. Meech, 1 Hagg. 612; Marsh v. Tyrrell, 2 Hagg. 84; Mynn v. Robinson, 2 Hagg. 169; 1 Jarm. on Wills, 81-2 and notes (Perkins, Ed.)

The principal question argued upon the hearing related to the kind of evidence admissible to prove the extent of the testator’s capacity, and the witnesses competent to give their opinions on the subject. We have had occasion in White v. Bailey, 10 Mich. 155, and Evans v. People, 12 Mich. 27, to refer to some features of this inquiry, but the fullness of the argument in the present case, and the necessity of removing any doubts which may exist among practitioners in this State, render it proper for us to express our views more fully than was necessary in those cases. The case now before us furnishes a good example of its kind, inasmuch as it involves the investigation, not only of the actual extent of Mr. Beaubien’s capacity to make a will if let alone, but also that of making a will unaffected by such influences as are alleged to have been at work to guide his action. The abstract question, how much capacity a man must have to make a will, is not very important, because, with but one or two exceptions, the authorities are ■entirely agreed upon all that it is necessary for us to consider. It can not be claimed that a will is valid, unless the testator not only intends of his own free will to make such a disposition, but is capable of knowing what he is doing, of understanding to whom he gives his property, and in what proportions, and whom he is depriving of it as heirs or devisees under the will he revokes: — Harrison v. Rowan, 3 Wash. C. C. 580; Burger v. Hill, 1 Bradf. 360; Wier v. Fitzgerald, 2 Bradf. 42; Kinne v. Kinne, 9 Conn. 102; Sutton v. Sutton, 5 Harr. 459; Horne v. Horne, 9 Ired. 99; Converse v. Converse, 21 Vt. 168. Whether he can be required to possess any further qualifications, we do not now propose to consider.

It was necessary, therefore, in the present case, for the jury to bo made acquainted, as nearly as possible, with the precise condition of the testator, in order that they might judge of it as they would have done had they personally known all about it. In all testimony the object of the law is to enable the jury to know all that the witness knows, which is pertinent to the issue; and every rule of evidence is designed to secure this end. It is expected of jurors that they have the same powers of judgment possessed by ordinary men, but not the special knowledge belonging to certain occupations or studies. And the first question which arises is, whether there in anything in the nature of inquiries concerning mental capacity, which requires juries to be informed, of necessity, by other than ordinary witnesses.

The law has always required mental capacity to render ■persons responsible for contracts, or crimes, as well as able to make wills, although not applying precisely the same rules to the three subjects.. In criminal cases, the jury, from time immemorial, have been obliged to pass upon the capacity of the accused. In civil cases, persons dealing with their neighbors have been held bound, generally, to form their conclusions of capacity at their peril, where they have had means of observation: — Beavan v. McDonnell, 26 E. L. & Eq. 540. It is only in modern times that medical science has been brought to bear upon these matters. Except in obscure cases of disease, or those pecu„ ■liar cases where the conduct and appearance of the alleged unsound person present nothing unreasonable or unusual, we have the same means — whether perfect or imperfect —-which have always been had, of forming an opinion without medical aid, and no better.

The general stock of knowledge among unscientific men is now, as always, derived from common observation ■and experience, and, whether adequate or inadequate for all purposes, it certainly serves for most. This is especially ■true in regard to cases of natural decay from age or weakness. The appearances and effects of this decline are familiar to all mankind. And, while it is well that new means of information may be attainable, the law does not generally exclude any class of men from being witnesses because there may be found wiser men, or more aecute and sagac, ious observers.

Lord Sale remarks that “physic and salves were before licensed physicians and chirurgeons” (1 Hale, P. C. 429); ■and it is equally true that men were acquainted with the ordinary manifestations of mental weakness and unsoundness, before they were included in the domain of science. By considering tbe manner in which questions of mental condition have been treated and investigated in the various courts, we may be enabled to understand what course has been the result of long experience.

The most common controversies, involving questions of mental condition, arose in criminal trials and prosecutions. And it is perhaps significant that questions of evidence on this subject have rarely been reported until very recently even in these. Had the tests of mental soundness been technical, and the inquiries to the witnesses been governed by peculiar rules, it can not be doubted that the books would have preserved some trace bf the practice. But enough appears incidentally, to furnish sufficient light for our guidance. By the rules of the criminal law a person could not be held liable for criminal acts committed during mental unsoundness, nor could any step whatever be taken against kini during the incapacity, whether it existed at the time of the offense, or was brought on after-wards. We have accordingly inquiries made, not only upon trial, but also upon arraignment and after conviction, as well as the special inquisition made for purposes of guardianship.

In the latter the condition of the person was to be determined • by personal inspection, as well as by the testimony of witnesses; while, upon appeal to the King in council, the personal examination appears to have been chiefly relied on: — Fitzh. Nat. Br. 232, 233; 1 Hale, P. C. 33. And personal examination and inspection has always been deemed of the utmost importance. A private examination by the chancellor has been of very frequent occurrence, and has often been entirely satisfactory. In all of these proceedings, while testimony is generally necessary, and in many cases scientific testimony is of the utmost value, yet the law has always regarded the subject as usually open to the common understanding, and capable of being judged by personal intercourse.

In ex parte Smith, 1 Swanst. 7, it is said that where the lunatic is unfit to appear before the jury, and they can not all go to him, one or two go and examine, and report to the rest his state and condition. And in the Matter of Russel, 1 Barb. Ch. 38, the importance of having the jury see the alleged lunatic is declared in very strong terms, the chancellor expressing a determination to require his production on pain of punishment to those neglecting it. Accordingly Lord Hale says, “if a lunatic be indicted of a capital crime, and this appears to the Court, the witnesses to prove the fact may and must also be examined, whether the prisoner were under actual lunacy at the time the offense was committed.’’ And the question whether a person was non compos mentis, so as to excuse him from trial, or from punishment on conviction, is recognized as in the determination of the Judge, although Hale recommends an inquest in all doubtful cases; and this is now the general practice in England: — 1 Hale, P. C. 35. According to him the Judge may even stop the trial, and discharge the petit jury, on discovering insanity; but the more common practice has been to direct an acquittal. In the case of Regina v. Goode, 7 A. & E. 536, where a prisoner was brought for arraignment into the Queen’s Bench before all the Judges, and it was proposed to call a medical man before the' jury of inquest to testify concerning his present state of mind, the Court said it was unnecessary, and the jury were instructed to decide from what - had taken place in their presence, and found him insane. In the celebrated case of Regina v. Oxford, 9 C. & P. 525, where the prisoner was indicted for a treasonable attempt to murder the Queen, his insanity was proved by his relatives and other unprofessional witnesses. The report says, “The most material evidence as to the prisoner was given by an inspector of police, named Ted-man, who saw him frequently for about eighteen months* during which he was barman.” The opinion of this witness appears to have been given after showing the extent of his acquaintance, and without undertaking to describe-the appearances on which he formed it; for afterwards, upon “being asked upon what fact he founded his opinion that the prisoner was of unsound mind,’’ he proceeded to give some details of his conduct. Several eminent medical men were also examined, and in reference to their-testimony the Court, through Lord Denman, Ch. J., observed, “It may be that medical men may be more-in the habit of observing cases of this kind than other persons; and there may be cases in which medical testimony may be essential; but I can not agree with the' notion that moral insanity can be better judged of by-medical men than by others.” Baron Alderson, and Mr. Justice Patterson were associated with Lord Denman on this trial. The inquiries concerning the capacity and understanding of the deaf and dumb are included by the authorities within the same rule which governs as to-capacity generally; and in these cases medical testimony does not appear to have been deemed important: — Rex v. Pritchard, 7 C. & P. 303 ; Rex v. Dyson, 7 C. & P. 305; Rex v. Thomas Jones, 1 Leach C. C. 120. No English case has been found by us, which, in criminal procedure, has required scientific evidence, to the exclusion of the testimony of ordinary witnesses acquainted with the accused. In the case of Freeman v. The People, 4 Denio, 9, where there was much controversy concerning the field which might be covered by the opinions of medical men, the opinions of ordinary witnesses, of the sanity of the defendant, were received on behalf of the prosecution without any exception from the defendant*And the question ^does not seem to have excited any serious discussion in criminal cases. The same evidence which is proper in one common law tribunal before & jury, can not be improper in another. The form of the questions is a distinct consideration, concerning which we may also derive light from the practice in criminal cases; and. to this reference will be made presently.

The next class of cases requiring attention embraces those raising the question of testamentary capacity directly. That the English ecclesiastical courts allow witnesses of all kinds to testify to their opinions, concerning persons whom they have seen and known, is not to be questioned. And the fact that these investigations are much more frequent there than elsewhere, is a reason why the results of their experience should be deemed of no small value. But, inasmuch as some authorities referred to on the argument seem to intimate that those courts have introduced new and unsound rules of evidence, it may be proper to examine into the decisions and practice of other tribunals. But, at the same time, it must be remembered that we are now considering a case which was appealed from a probate court, whose practice is largely borrowed from that of the English' ecclesiastical courts; and it is not easy to perceive why testimony allowable in the lower court should be shut out on the hearing above.

It has never been disputed that the subscribing witnesses may testify concerning the actual mental condition of the testator, as freely as medical witnesses who speak from personal acquaintance and investigation. The reasons given, by those courts which confine such testimony to these witnesses, are based upon the assumption that they are called in for the special purpose of scrutinizing the capacity, as well as the acts of the testator. It is matter of evei’y day experience that wills made in extremis must usually be witnessed by any- persons who are conveniently to be found; and it is not often that much care is taken to procure educated or peculiarly intelligent witnesses; nor is their attention in fact very closely addressed to the question of capacity, beyond what would naturally be the case with any other observers present. But, be this as it may, the rule assumes that any person of ordinary capacity may form a reliable opinion concerning the condition of another, from simply witnessing the execution of a will, which is rarely drawn up or discussed in the presence of the attesting witnesses. It is little short of absurdity to hold that persons having equal or greater facilities, derived from personal acquaintance and long intercourse, are not as competent to form opinions as those who are required to have no opportunity beyond one brief interview. The rule is also fallacious, in ignoring the fact that, in most cases of alleged fraud or imbecility, the procurement of a will involves a suspicion of mal-practice, and that those relying upon a will improperly obtained would have a most dangerous advantage given them, by affording their subscribing witnesses a degree of credit which, in many instances, would render any attack upon their statements useless.

Referring, as before, to the English practice outside of the ecclesiastical courts, we find the commonest examples of the investigation of mental capacity in suits in chancery, brought to establish or set aside wills and devises. In these cases it is quite common to have the testimony perpetuated; and, whenever there is any serious controversy, an issue of devisavit vel non is sent down for trial. The rule in chancery requiring the examination of all the subscribing witnesses is thus explained by Lord Camden: Sanity is the great fact the witness is to speak to when he comes to prove the attestation; and that is the true reason why a will can never be proved a3 an exhibit viva voce in chancery, though a deed may; for there must be liberty to cross-examine to this fact of sanity. From the same consideration it is become the invariable practice of that Court never to establish a will unless all the witnesses are examined; because the heir has a right to proof of sanity from every one of them whom the statute has placed about his ancestor ”: — Gresley's Eq. Ev. 123. And if no examination has been had as to sanity, the cause will be adjourned to have it taken: — Ibid. The form of interrogatory calls directly for the conclusion of the witness, and is as follows: “Was the said testator, at the time of the execution of the said produced will or writing, of sound memory and understanding, or not, as you know, or for any and what reason or reasons believe”: — Gresley's Eq. Ev. Appx. The form given in the Equity Draftsman is whether the testator was “of sound and disposing mind, memory and understanding, or how otherwise, as you for any and what reasons know or believe.” In the case of Tatham v. Wright, 2 Russ & M. 1, where upwards of sixty witnesses were examined in the court of chancery, and upon the trial of the issue in the court of law, some quotations are given, showing what answers the witnesses were permitted to give, with the approval of the court. One of the attesting witnesses, after speaking of the weakness of John Marsden’s, the testator’s, faculties, said: “ That he was capable of making a plain strait-forward will or codicil, to a limited extent?' On his cross-examination he gave his opinion as to the incapacity of Marsden to transact business, manage property, &c., very fully, and also that he “had not the power to follow his own inclinations, or to act as he wished without the restraint or control of the defendant Wright in matters of consequence, and that he had not a will of his own in such matters; that he did not think John Marsden was capable of giving written instructions or directions for his will to Giles Eleasdale, or to any other person ; and that, in his opinion, John Marsden was not capable of comprehending, combining together, and judging accurately of the nature and consequences rof any legal instrument creating a variety of new rights and interests." Another witness said Marsden was of sufficiently sound and disposing mind, memory and undez-standing, to make a plain and simple will or ■ codicil, though not to make an intricate or complicated toill or codicil.” His cross - examination corresponds almost exactly with that quoted from the other witness. Another phrase quoted by Tindal Ch. J. from one of the defendant’s witnesses — not a subscribing witness — is “he was utterly incapable of managing and conducting his own affairs, and of giving instructions for such a will as that in question, even divested of its technicalities.’’ The Master of the Rolls, the Lord Chancellor Brougham, the chief Baron of the Exchequer Lord Byndhurst, and chief justice Tindal, all received and acted upon this testimony, but sustained the will upon the whole case. The heir (who was held not bound by the decree) then brought ejectment, and the questions raised upon the various trials were carried through all the courts, and finally settled in the House of Lords: — Wright v. Doe d. Tatham, 1 A. & E. 3; 7 A. & E. 313; 4 Bing. N. C. 489. It will be perceived by referring to these reports, that the testimony concerning the capacity of the testator was introduced in the same way as in the chancery cause, and the witnesses gave the same kind of opinions. The controversy was thoroughly and sharply contested, but no question whatever was raised, in any of the courts, concerning the propriety of asking or receiving these opinions. The case finally went up on the admissibility of certain letters found opened among the testator’s receptacles, addressed to him but having no memoranda made by him, and not proved to have been answered or acted on. Letters answered seem to have been received in evidence. These unanswered letters were offered to show how he was treated by his friends; it being claimed that they were in the nature of res gestae, and such as would not have been written to a man lacking ordinary capacity. '

| Lord Benman, and Coleridge and Biitleddle JJ. concurred in rejecting them, admitting, however, that the slightest act of the testator connecting him with them would have made them admissible. Patteson and Williams-JJ. had been of counsel, and gave no opinion. In the Exchequer Chamber, and in the House of Lords, some of the judge's thought them admissible as acts. A majority-regarded them as merely equivalent to the statement of opinions which should be rejected, because not ' made under oath, nor under the test of cross - examination. The practice of receiving the opinions of witnesses upon capacity is fully recognized, and such evidence is stated by Alderson B. to be not properly mere opinion, but a compendious way of reaching the factj of capacity which can not otherwise be explained. And to the same purport is the-remark of ParJce B. (who concurred with Alderson B. and the majority in rejecting the letters), who says: “The-question is not what the capacity of the testator was reputed to be, but what it really was in point of fact;, and though the opinion of a witness under oath, as to that fact, might be asked, it would only be a compendious mode of ascertaining the result of the actual observation of the witness, from acts done, as to the habits and demeanor of the deceasedIn this case some of the Judges say that if the ecclesiastical courts admitted evidence of the manner in which a person was treated by Others, independent of his own acts under that treatment, they disapproved the practice; but it is not intimated by any one that, in regard to the question in controversy before us, there was any difference in the practice of any of the courts. We do not feel called upon to express any opinion upon the point decided in that snit.

So far as the form of the question is concerned, it has been customary in all the courts to allow it in such a way as to test the capacity with reference, as near as may be, to the very act or kind of act in dispute. In Rex v. Pritchard, and Pex v. Dyson, before cited, this appears very clearly, as it does also in the cases above-referred to. See also Eggleston v. Kingston, 8 Ves. 439. In several of the criminal decisions the proper form of a question to be put to the medical witnesses has been discussed, and it was finally referred by the House of Lords to the Judges, whether a form commonly used did not interfere with the prerogatives of the jury. That form was, whether, from, the testimony of the other witnesses, the act of the prisoner was an act of insanity. In Rex v. Wright, Russ. and Ry. 456, this question was allowed, and it is said several of the Judges doubted its propriety. The witness was allowed to discuss the whole case upon the evidence of the rest. In Rex v. Offord, 5 C. & P. 168, which was tried subsequently, the evidence was deceived in that form. The case of Rex v. Wright was referred to in a note, but it does not appear whether the attention of the Court was called to it. In Regina v. Pate, 5 Warren’s Works, 309, a physician who said that from all he had heard that day, and from personal observation, he was satisfied the prisoner was of unsound mind, was rebuked by Alderson, B. for assuming the functions of the Court and jury. In MeNaughtorUs ease the physicians were allowed to give their conclusions from the evidence, one of them summing up the entire case by saying that the prisoner was insane, and committed the 'offense while afflicted by a delusion, under which he appeared to have been laboring for a considerable length of time. The result of McNaughton’s acquittal was an inquiry by the House of Lords into the general subject Of insanity, and, among other things, whether a medical witness, who never saw the prisoner, but was present at the trial and heard the testimony, could be asked his opinion of .the state of the prisoner’s mind at the commission of the offense, or whether he was conscious of acting illegally, or laboring under any delusion. The Judges all agreed that the question was open to the objection that it allowed the witness to form his own conclusions from the testimony of others, whereas their credibility should be determined by the jury. But otherwise the question was not deemed objectionable, and they stated it would be proper where there was no dispute or difference among the witnesses. Maulé J. considered the question admissible according to the settled practice, although theoretically open to the objection named. Opinions of Judges, note to Regina v. Higginson, 1 C. & K. 129. In Bainbridge v. Bainbridge, Taylor’s Med. Juris. 908, such a question was ruled out, on the ground suggested, while in the later case of Duke of Manchester v. Bennet, Taylor's Med. Juris. 901, 908, it was held competent.

From the best examination which it has been possible for us to make of the English practice, we are satisfied that in all of the courts, civil and criminal, as well as in the ecclesiastical courts, the practice concerning proof of mental condition is the same, and permits all who have had means of observation to testify concerning the existence and measure of capacity with reference to the matter in controversy; while it does not permit those who do not testify from personal observation to give a direct opinion of capacity, except upon some given hypothr esis. In every case the witnesses who speak from their own observation are expected to describe, as well as they can, what has led to their conclusions, as well as their means of observation. But the cases referred to show that, in many instances, the results of very limited observation have been permitted; — the safeguard of cross-examination and a comparison of testimony being deemed sufficient to prevent any mischief from the inperfect knowledge of single witnesses.

In the United States, the authorities all require the witness to state such facts as he can, in order that the jury may be better enabled to determine the value of his opinions; — stress being of course laid upon his opportunities of judging. In many cases the facts which can be described will be very significant to a jury, while there are many facts susceptible of a different interpretation, from which a jury could obtain no light whatever without the aid of the witness’s judgment. The strongest indications of mental weakness or aberration often exist in expressions and appearances incapable of reproduction, even by an ■accomplished mimic; and yet decisive to any intelligent eye-witness. The great body of decisions in the United States adopt the English practice, and open the door to all testimony which can enlighten the jury, from every kind of witnesses. And in regard to the kind of weakness alleged to have existed in the case of Mr. Beaubien, there has been a very general feeling that very little aid can be had from strictly scientific witnesses, beyond that furnished by ordinary experience. The mere fact that a person is a physician does not of necessity qualify him to speak ex cathedra on this subject — especially when every one can assume the title with impunity. Men of real knowledge can always gain a respectful hearing on their own merits. The fact that in all important litigations the experts are found arrayed against each other, renders it necessary for the jury to determine which is right, and in doing this they must fall back upon their own knowledge of human nature. Judge Ledfield has referred to this difficulty in the chapter on Senile Dementia: — Am. Law Reg. for June, 1864, pp. 458, 459. See also Taylor's Med. Juris. 890, 891, 907, and Delafield v. Parish, 25 N. Y. 9. And where the witnesses speak from their own observation, the questions which may be put to one, may be also properly put to another.

The authorities in this country have passed directly upon points which in England have been settled by unbroken practice; and we find, therefore, that here the admissibility of non - professional testimony has been discussed very fully. The general doctrine is, that all witnesses speaking from observation must, as far as possible, state such facts as they can give as the basis of their opinion. This rule does not require them to describe what is not susceptible of description, nor to narrate facts enough to enable a jury to form an opinion from those alone. This would be impossible; and if it could be done, there would be no occasion for any opinion from the witnesses. It is a matter of daily experience that the opinion of an intelligent and familiar eye - witness is the only satisfactory means of ascertaining mental condition, or disposition, or expression, or any other of those impalpable but important facts upon which men rest in dealing with each other. There is no substitute for personal observation. But, if witnesses were not compellable to state such facts as are tangible, there would be no means of testing their truthfulness. When they state visible and intelligible appearances and acts, others who had the same means of observation may contradict them, or show significant and explanatory facts in addition; and if their story is fabricated, or if they describe facts having a medical explanation, medical experts may detect falsehood in inconsistent symptoms, or determine how far the symptoms truly given have a scientific bearing. But, from the nature of things, no rule can be laid down declaring what amount of acquaintance or what opportunities are necessary to enable an observer to be a witness. There are cases of insanity open to the slightest scrutiny, while others defy the keenest search. But no testimony can be of any real value, unless it appears the witness had adequate moans and opportunities for forming some conclusion.

The cases of Clary v. Clary, 2 Ired. 78; Clark v. State, 12 Ohio, 483; Potts v. House, 6 Geo. 324; Dunham's Appeal, 27 Conn. 192; Norris v. State, 16 Ala. 776, and Powell v. State, 25 Ala. 21, are so full and satisfactory in their reasoning upon the admissibility of opinions from all witnesses speaking from personal knowledge, that nothing can be added to enforce them. To the same effect are Roberts v. Trawick, 13 Ala. 68; Watson v. Anderson, 13 Ala. 202; Florey v. Florey, 24 Ala. 241 ; Wilkinson v. Moseley, 30 Ala. 562; Hughes v. Hughes, 31 Ala. 519; Doe v. Reagan, 5 Blackf. 217; Rogers v. Walker, 6 Barr, 371; Kinne v. Kinne, 9 Conn. 102; Grant v. Thompson, 4 Conn. 203; Dicken v. Johnson, 7 Geo. 484; Townshend v. Townshend, 7 Gill, 10; Dorsey v. Warfield, 7 Md. 65;, Baldwin v. State, 12 Mo. 223 ; Lester v. Pittsford, 7 Vt. 158; Dewitt v. Barley, 17 N. Y. 340. Many other-cases might be added were it desirable to multiply citations..

The only remaining question is, in what form it is. allowable to introduce evidence of capacity. It was objected on the hearing that a direct answer that a person is insane,, or incapable of doing one thing or another, is not receivable because usurping the office of the jury. The only authority relied upon is a statement in Judge Selden’sopinion in Dewitt v. Barley, 17 N. Y. 340, that the decision of the same court in the same cause, in 9 N. Y. 371, was only binding upon that question, and not upon the general doctrine of the inadmissibility of opinions for any purpose. But while Judge Selden relies upon this distinction to avoid a conflict with a reported case, be distinctly approves of the dissenting opinion of Judge Denio, which demonstrates the propriety of just such inquiries; and the whole of his reasoning is aimed at overthrowing the position of the majority opinion on the former hearing. The-opinion of Judge Denio, in 9 N. Y., refers to numerous; cases in which the inquiry was made and answered distinctly. And in Delafield v. Parish, Judge Selden quotes, as quite conclusive, the answers of some witnesses coming-directly within the supposed objection. Mr. Lord says, in regard to the testator’s condition at the date of the second codicil, aI had no doubt, and have not any, of his entire' capacity to understand what he was doing, and the effect-of it.” The same witness speaks as to the testator’s capacity to make the third codicil, “In my judgment it was perfect for the purpose of making a codicil of this kind ; he fully understood it, and fully agreed to it." And Dr. Taylor testified, “ I had not myself the least doubt of the soundness of his mind, nor coidd I have supposed that any intelligent person could doubt its soundness:’’ p. 106. This is the testimony upon which Judge Selden chiefly relied, and no suggestion is made by him, or any one else, that it was not admissible. The objection to a witness assuming the functions of a jury did not escape the notice of the court, a majority of whom held that a “medical witness can not be asked his general opinion (i. e. his conclusion from all the evidence), as to the state of the party’s mind at the time of doing the act:” p. 75. A majority of the court concurred in so much of Judge Gould’s opinion as commented on the attempt to introduce the opinions of medical men violating this rule. But no one held any of the opinions of the witnesses who spoke fromj their own observation to be incompetent, although there Ivas a great deal of such testimony. They simply say of them that their value depends on how far they are sustained by facts: p. 38, 39. It can not be said, after the decision in Delafield v. Parish, that such opinions are regarded by the Court of Appeals as infringing upon the province of the jury. Nor have we discovered any ruling elsewhere excluding opinions in that form, where they are received at all. Counsel for plaintiffs in error admitted on the hearing that the general practice was to receive them, and referred to sevei’al authorities to that effect. They might be multiplied almost indefinitely. Thus, in Hughes v. Hughes, 31 Ala. 519, the testimony was that “the testator was of sound and disposing mind and understanding.’’ In Culver v. Haslam, 7 Barb. 314, “not capable of transacting business understandingly.” In Wier v. Fitzgerald, 2 Bradf. 42, the question went to the capacity to make a will. In Mowry v. Silber, 2 Bradf. 133, capacity to transact ordinary business. In Massachusetts, such witnesses as may give opinions, give them in the same way: — Poole v. Richardson, 3 Mass. 330 ; Buckminster v. Perry, 4 Mass 593 ; Hathorn v. King, 8 Mass. 371; Dickinson v. Barber, 9 Mass. 225; Needham v. Ide, 5 Pick. 510; Commonwealth v. Rogers, 7 Met. 500. In this latter case Shaw Ch. J. explains the whole doctrine very clearly, and distinguishes between an opinion which the jury can estimate by the truthfulness and intelligence of the witness, and one which is based upon the witness’s judgment of other testimony, which'ho might believe and the .jury might disbelieve. He says there is no legal objection because the opinion covers the substantial facts of the case — a thing which is done by direct testimony of facts in a majority of simple cases. To the same effect is Lunning v. The State, I Chandler, 178, 264. In Cook v. Castner, 9 Cush. 266, this subject is further elucidated by Chief Justice Shaw. That case involved an inquiry into the condition ■ of a vessel’s timbers at a prior date, and whether decay was ascertainable on inspection; and an expert was allowed to be asked whether, from his knowledge of the vessel, it w;ould have been possible fifteen months before to take off a piece of the thick streak and replace it with new without discovering the rot; such replacing having occurred. In Cottrill v. Myrick, 3 Fairf. 222, where a stream had been improved, a witness was allowed to testify from, his knowledge of the habits of certain fish, whether they could have ascended the river in its natural state. In Willis v. Quimby, 11 Fost. 485, a witness, not au expert, was permitted to state that a horse could not have been sound at a certain time, because soon after a disease appeared in his feet manifestly of long standing. In Malton v. Nesbit, 1 C. & P. 70, it was held that a nautical expert might testify that a given state of facts would be negligence, while in Sills v. Brown, 9 C. & P. 601, it was held such a witness could not be asked whether, from the evidence he had heard, there was such negligence. And in Fenwick v. Bell, 1 C. & K. 312, it was held that a nautical witness might be asked whether, “having heard the evidence, and admitting the facts as proved by the plaintiff to be true, he was o'f opinion that a collision between the two ships could have been avoided by proper care on the part of the defendant’s servants.’’ These three cases illustrate very forcibly the trrfe distinction as explained in the answers of the Judges to the House of Lords before referred to.

We think that there, can be no impropriety in allowing the opinions of the witnesses upon any measure of capacity which is calculated to aid the jury in coming to a conclusion. What we loosely term opinions and impressions are declared by many of the authorities to be no more nor less iban statements of fact, differing from ordinary statements only because of peculiarity, of the subject. When a witness is asked what is the size or color of a certain object, or whether the evening is light or dark, clear or cloudy, the oniy difference between the impressions from which he speaks and those relied on in cases of capacity, .is that they are less opgn to difference ‘of opinion among observers. Evidence concerning personal identity _ must always be matter of opinion, but it is always received in a. positive form. So may be evidence of value, . of hand writing and the like,. which are purely matters of opinion. Whenever the facts are such that the jury can not form, an unaided opinion, it is essential that the opinions which they receive should enlighten them upon the exact point in ’ controversy, if possible, for otherwise their verdict will be conjectural. The course of decision upon this subject is so complete and uniform that we must accept is as the practice found safest by experience. Juries are1 not bound to accept opinions unless they consider them well, founded, and -fee do not find in practice that they are often misled by the opinions of eye witnesses who approve themselves sensible and candid.

The questions objected to in the case before us come very far within the rule laid down. [Capacity to understand an ordinary document, or to hold a continuous conversation, may certainly be inquired into as furnishing a means of informing the jury, as near as may be, of the extent of the testator’s powers, physical and mental combined, as affecting his capacity to make the will propounded. Unless such inquiries can he made, it is hard to conceive to what point .questions could be directed, so as to give the jury any light whatever on the case. To exclude them would inevitably lead to compelling jurors to ’form their decision upon such .descriptions of acts and appearances as the witnesses could give — and entirely shut'out the opinions of any witnesses based on tbeir own observation.

We think there is no error in the rulings.

Martin Ch. J. and Cheistiancy J. concurred. Manning J. did not sit in this case.

Judgment affirmed.