Simonds v. Patridge

28 N.E. 901, 154 Mass. 500, 1891 Mass. LEXIS 170

• Court: Massachusetts Supreme Judicial Court
• Decided: October 24, 1891
• Status: Published

Opinion

Holmes, J.

This is an action for services as housekeeper to the defendant’s testator. The answer is a general denial, and accord and satisfaction by a devise and legacy in the testator’s will. If a conversation took place between the testator and a third person in the presence of the plaintiff, to the effect that her services were to be paid for in that way, it would be admissible to prove the fact. Frost v. Sumner, 149 Mass. 98. The testimony of Dr. Davis was open to the interpretation that, although his memory of the plaintiff’s presence at the conversation which he related was not visual, it still was memory of a fainter degree, sufficient for belief. So interpreted, it warranted a finding that she was present. Stockhridge v. West Stockbridge, 12 Mass. 400. The jury were instructed that Dr. Davis’s evidence was not competent, if they should find that the plaintiff was not present at the conversation testified to by him. This being the presiding justice’s view of the law, expressly stated to the jury, it is quite incredible that he should have applied a contradictory rule the next moment to the testimony of Sarah Williams ; and we are compelled to require with some strictness that the excepting party should make it clear that the testimony was admitted improperly.

The bill of exceptions does not exclude the possibility, and some of us think that it shows affirmatively, that the conversation testified to by Williams was the same as that testified to by Dr. Davis; so that the evidence and instructions as to the plaintiff’s presence applied to it also.

Dr. Davis and Williams both were witnesses to the will. The occasion described by the former was when the will was made, by the latter, when Patridge executed his will. There is nothing in the two accounts of what was said inconsistent with its being the same conversation. Evidently the judge assumed that both witnesses were speaking of the same conversation, and, although the bill of exceptions suggests the possibility that they were not doing so, it does not show the fact to have been that way rather than the other. Upon this view of the evidence, without going further, it was admissible, and the ruling requested, that there was no evidence of satisfaction of the plaintiff’s claim, was properly refused. Exceptions overruled.