FRANK A. GORHAM & another, executors, vs. CHARLES H. MOOR

RUGG, J. These exceptions relate to a trial of issues as to undue influence and soundness of mind of Mary Ann Gowen in the execution of her last will.

1. Several witnesses other than the attesting witnesses of the will and the testatrix's family physician were asked, in substance, the question whether they ever saw the testatrix do or heard her say anything that indicated anything singular or

Page 523

unusual respecting her mental condition. [Note p523] None of these witnesses were alienists or physicians, but they all had an intimacy with the testatrix for a considerable time, and covering a period sufficiently near to the date when the will was executed to make competent their observations of facts. It was early established as the law of this Commonwealth that witnesses not experts are not permitted to give their opinion in regard to the sanity of one whose mental condition is drawn in question. Exceptions, not material in this inquiry, are made in the trial of will cases as to the subscribing witness and the family physician of the testatrix. This court, although repeatedly asked, has always refused to change this rule, and it is not now open to discussion. McCoy v. Jordan, 184 Mass. 575. The difficulty in its application lies in keeping distinct the line between statements of facts, from which the jury can draw an inference as to the mental capacity of the person under inquiry, and an expression of opinion as to what the facts show. Many statements of fact involve to a greater or less extent an exercise of judgment, and

Page 524

they generally require observation and attention. Frequently a deduction from certain facts must be made in order to determine the fact directly in issue. To decide whether one is intoxicated or not, when nicely analyzed, demands an observation of certain facts or conditions, and an inference as to the cause of these manifestations. But the result is not a matter of opinion; it is a statement of fact. Edwards v. Worcester, 172 Mass. 104. The precise form of question, which is aimed to elicit a fact as distinguished from that which calls for an opinion, has frequently been considered. All the previous cases are cited, discussed and classified in Clark v. Clark, 168 Mass. 523, decided in 1897. Since that time question has arisen, in Hogan v. Roche, 179 Mass. 510, where it was held that an inquiry as to whether the witness had observed in the testatrix "any peculiarity of manner, speech or conduct" was admissible; in Ratigan v. Judge, 181 Mass. 572, the question "Was he subject to delusions or hallucinations?" was held to be incompetent, as requiring an opinion as to mental condition; and in McCoy v. Jordan, 184 Mass. 575, where the subject was again elaborately discussed, it was there held that the following questions were competent: "Did you ever notice anything to indicate that he was not of sound mind?" "Whether or not you noticed any failure of intelligence on his [the testator's] part?" "What facts did you observe as to his [the testator's] powers of comprehension, mental grasp, coherency, power of reasoning, memory, intelligence, will and accuracy?" It was further said in the course of the opinion, page 578, "A witness may properly be asked if he has observed any facts that have relation to the subject upon which information is sought. Such a question can usually be answered by `yes' or `no.' If he answers in the affirmative, he may be asked to state what he has observed. If the purpose is to prove a negative, the question may be so framed as to direct the attention of the witness to his observation as to peculiarities of speech or manner of conduct, or anything else indicating an unusual mental condition." The questions objected to by the contestant in the present case appear to have been framed in view of this last statement of the law, and were therefore not open to objection. See also Stone v. Stone, 191 Mass. 371, 376.

Page 525

2. One issue was whether the testatrix was unduly influenced by one Gorham. He was called as a witness, and testified that he never advised or talked with the testatrix about the will, or in any way had anything to do with the making of it. On cross-examination he testified, on one day, that he did not see the will nor have any intimation of its contents, so far as he remembered, until the will was offered for probate, which was seven days after the death of the testatrix. On the following day, however, he modified this statement and testified that he read a copy of the will at the office of the attorney who drafted it on the day after her death. He was also asked on cross-examination whether, at a conversation with a Mrs. Cousin on the day after the death of the testatrix, he did not say to her that the will was short and to the point as he told her [the testatrix] to make it, and to this question he answered no. Thereafter, the contestant called Mrs. Cousin, and asked of her what Mr. Gorham said in regard to the will, for the purpose of contradicting both his denial of having said that the will was short and to the point as he told her to make it, and also his statement that he had no knowledge of the contents, offering upon the latter point to show that he had informed the witness as to the nature of the will and certain provisions in it at a time when, according to his testimony as given on the first day he was on the witness stand, he could not have obtained any knowledge about it after the testatrix's death.

The inquiry of the witness Gorham as to whether he had not said the will "was short and to the point as he told her to make it" was irrelevant if calling for affirmative evidence. A declaration by one, charged with having procured by undue influence the execution of a will, that he did exercise such influence is not evidence of the fact as against other parties in interest. The rights of innocent devisees and legatees cannot be thus affected. "Such a rule would violate all sense of right." Shailer v. Bumstead, 99 Mass. 112, 128. It would not be competent for a party in cross-examination to draw out such irrelevant testimony, and thereafter undertake to impeach the witness by showing that he had made inconsistent or conflicting statements at other times. Force v. Martin, 122 Mass. 5. Parker v. Dudley, 118 Mass. 602. Commonwealth v. Matthews,

Page 526

129 Mass. 485. Commonwealth v. Fitzgerald, 2 Allen 297. Mowry v. Smith, 9 Allen 67. Although the second branch of the offer tended to contradict the testimony of Gorham as given on the first day, yet as he finally left it on the second day of his examination, by having said that he read a copy of the will during the day after the death of the testatrix at the office of the attorney, it did not have a tendency to contradict him to show that on the evening of the day on which, as he testified, he had seen the will, he made statements as to its contents to Mrs. Cousin. It was open to the contestant to argue as to the inconsistencies of the witness's testimony and the fallibility of his memory, but not to contradict a statement made early in the examination, which the witness himself corrected before the conclusion of his testimony. These were the grounds upon which the testimony was chiefly offered at the trial; but, during the discussion, it was said by one of the counsel for the contestant: "We offer it not because it is material to the case, but because it bears on Mr. Gorham's credibility." This was a general offer, and enables the contestant now to sustain his exception, if he shows that it contradicted any material evidence given by the witness Gorham. The latter had testified generally that he never advised or talked with the testatrix about her will, or had anything to do with the making of it. A statement made by him at another time and place that the will was "as he told her to make it" tended to contradict him upon this portion of his material testimony, and was therefore admissible. We cannot say that the contestant may not have suffered harm by the exclusion of this evidence. His exception on this point must be sustained. As two distinct issues were passed upon by the jury, and the point upon which the exceptions must be sustained relates solely to the issue of undue influence, the new trial is to be confined to that issue, and the verdict of the jury upon the issue as to the soundness of mind of the testatrix and any other, which may have been submitted to them, is to stand.

So ordered.

A.S. Littlefield, (of Maine,) (L.G. Roberts with him,) for the contestant.

F.N. Nay, (J.L. Bates & F.A. Appleton with him,) for the executors.