McConnell v. Wildes

26 N.E. 1114, 153 Mass. 487, 1891 Mass. LEXIS 318

• Court: Massachusetts Supreme Judicial Court
• Decided: April 3, 1891
• Status: Published

Opinion

C. Allen, J.

1. Evidence of statements made by Caroline M. Wildes, after the death of the testatrix, was properly excluded. At that time she could not, if she had wished to do so, prejudice the rights of legatees under the will by admissions, or express declarations, that she had procured the execution of the will by force or fraud. Shailer v. Bumstead, 99 Mass. 112, 127-129.

2. It is for the presiding justice primarily to decide whether sufficient search for a lost document has been made to render secondary evidence of its contents admissible. The evidence of such search, in the present case, was sufficient to warrant the admission of testimony as to the contents of the lost will. 1 Greenl. Ev. § 558.

3. The objection that there was no proof of the formal execution of the earlier will was not distinctly taken at the trial, but if it had been, it could not have prevailed. If the paper had been a mere draft or memorandum prepared by the testatrix, showing her intentions or wishes at that time as to the disposition of her property, the contents of it might properly be proved in evidence, as bearing upon the question of her soundness of mind, and also upon that of undue influence. The fact that it was in the form of a will, which apparently had been executed by her, did not render its contents any the less admissible for that purpose.

4. The admission of the paper produced by Caroline M. Wildes was competent, for "similar reasons.

5. The question to Mr. Sprague, whether he had observed any fact which led him to infer that there was any derangement of intellect in the testatrix, was in the form allowed by the presiding justice at the trial of May v. Bradlee, 127 Mass. 414; and it was there decided that a new trial need not be granted on account thereof. It is settled in this Commonwealth that Mr. Sprague could not have been allowed to give his opinion directly upon the soundness of mind of the testatrix. 127 Mass. 421, and cases cited. The objection urged to the question in this form is, that it may call for such opinion. For this reason, the question might properly have been excluded, with a suggestion to change its form so as to avoid the objection. The witness, however, was expressly cautioned not to state his opinion, but to state facts; and under these circumstances there is no occasion to grant a new trial, there being no reason to suppose that injustice was done.

There having been no error in the admission of evidence, the entry must be, Exceptions overruled.