Bodfish v. Cross

Massachusetts Supreme Judicial Court

Bodfish v. Cross

126 N.E. 655, 235 Mass. 428, 1920 Mass. LEXIS 733

CourtMassachusetts Supreme Judicial Court

DecidedApril 2, 1920

StatusPublished

Cited by5 cases

This text of 126 N.E. 655 (Bodfish v. Cross) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bodfish v. Cross, 126 N.E. 655, 235 Mass. 428, 1920 Mass. LEXIS 733 (Mass. 1920).

Pincite

Opinion

Jenney, J.

The only question is, whether there was error in the exclusion of declarations made by a deceased person and offered in evidence under R L. c. 175, § 66.

[431]*431During the trial of issues involving the soundness of mind of the alleged testator, and undue influence alleged to have been exercised upon him, by Semira D. Ellis, Lelia M. Ellis, and John D. W. Bodfish in procuring the execution of a will and codicils, Harriet A. Fish was examined concerning a statement, which, it was contended, had been made to her by her brother, Roland J. Green, who had died in the lifetime of the testator. An offer of proof was made that the brother had said to the witness that the testator had asked him to tell her that he would like “to come and see her, but the Ellises will not let” him.

If the brother had been living and had been a witness, his evidence to that effect clearly would have been admissible, the statement having been made within the period to which testimony had been limited by the judge. There had been introduced evidence of impaired mental condition and undue influence by Semira D. Ellis and Lelia M. Ellis, sufficient to furnish a basis for the admission of the statement.

The statute requires a preliminary finding by the court, that the declaration offered “was made in good faith before the commencement of the action and upon the personal knowledge of the declarant.”

The presiding judge, who excluded the evidence, found, at the preliminary hearing required by the statute, that the deceased brother made the statement to the witness, and said: "Beyond . that I am not satisfied.” He did not find that the statement was made in good faith. On the record, this action cannot be said to be unjustifiable, and therefore it is not reviewable. McSweeney v. Edison Electric Illuminating Co. 228 Mass. 563. In the absence of such finding, the evidence was properly excluded. Slotofski v. Boston Elevated Railway, 215 Mass. 318.

Exceptions overruled.

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Jenney, J.

The only question is, whether there was error in the exclusion of declarations made by a deceased person and offered in evidence under R L. c. 175, § 66.

[431]*431During the trial of issues involving the soundness of mind of the alleged testator, and undue influence alleged to have been exercised upon him, by Semira D. Ellis, Lelia M. Ellis, and John D. W. Bodfish in procuring the execution of a will and codicils, Harriet A. Fish was examined concerning a statement, which, it was contended, had been made to her by her brother, Roland J. Green, who had died in the lifetime of the testator. An offer of proof was made that the brother had said to the witness that the testator had asked him to tell her that he would like “to come and see her, but the Ellises will not let” him.

If the brother had been living and had been a witness, his evidence to that effect clearly would have been admissible, the statement having been made within the period to which testimony had been limited by the judge. There had been introduced evidence of impaired mental condition and undue influence by Semira D. Ellis and Lelia M. Ellis, sufficient to furnish a basis for the admission of the statement.

The statute requires a preliminary finding by the court, that the declaration offered “was made in good faith before the commencement of the action and upon the personal knowledge of the declarant.”

The presiding judge, who excluded the evidence, found, at the preliminary hearing required by the statute, that the deceased brother made the statement to the witness, and said: "Beyond . that I am not satisfied.” He did not find that the statement was made in good faith. On the record, this action cannot be said to be unjustifiable, and therefore it is not reviewable. McSweeney v. Edison Electric Illuminating Co. 228 Mass. 563. In the absence of such finding, the evidence was properly excluded. Slotofski v. Boston Elevated Railway, 215 Mass. 318.

Exceptions overruled.

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Bluebook (online)

126 N.E. 655, 235 Mass. 428, 1920 Mass. LEXIS 733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bodfish-v-cross-mass-1920.

Opinion

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