Whitman v. Morey

Smith, J. 1. The remark of Strong, in his testimony, that “he understood, in order to have the will operate to give the property to the plaintiff, it would be necessary to name all-the heirs of the testatrix,” was competent evidence to show how the nominal legacies of one 'dollar got into the will. The will itself is competent evidence on the question of sanity. The evidence objected to was competent for either party. It tended to show that the nominal legacies were not inserted by Strong by direction of the testatrix. 2. Strong, a subscribing witness to the will, and the person who wrote it, was called by the plaintiff, and testified to the execution of the will, and to the circumstances attending its execution. For the purpose of contradicting him, the defendants read detached portions of his deposition, previously taken by them. This gave the plaintiff the right to read to the jury so much of the deposition as pertained to the same subjects, and tended to qualify, limit, or explain the answers read by the defendants. Wentworth v. McDuffie, 48 N. H. 402, 404; Prince v. Samo, 7 Ad. & E. 627; 1 Gr. Ev., s. 46. A party calling a witness may reexamine him so far as to explain the sense and meaning of expressions used by him *455 in a former statement as to which he has been cross-examined, and may inquire as to the motive by which he was induced to use such expressions. The evidence is admitted to render that introduced by the other side intelligible, and to prevent a party from being prejudiced by an extract which would be misunderstood unless the context were supplied. The Queen’s Case, 2 Brod. & Bing. 284, 298; Randle v. Blackburn, 5 Taunt. 245; Thompson v. Austen, 2 D. & Ry. 358; Smith v. Blandy, Ry. & M. 257; Darby v. Ouse ley, 2 Jur., N. S. 497; Way v. Butterworth, 106 Mass. 75; Wentworth v. McDuffie, supra; Ward v. Dow, 44 N. H. 45; 1 Gr. Ev., ss. 201, 467; Chamberlayne’s Best on Ev., s. 520. The defendants object that the plaintiff read more of the deposition than he was entitled to read under the settled rules of evidence. The detached portions read by the defendants related to the physical and mental condition of the testatrix, and the source from which Strong obtained the names of the nominal legatees. They bore upon each of the issues, — mental capacity to make a will, undue influence, and the due execution of the will. The defendants undertook to prove that the plaintiff furnished Strong with the names of the nominal legatees, as tending to show that he dictated the will. This made it competent for the plaintiff to show everything he said to Strong on that subject, for the purpose of proving that he did not dictate the terms of the will; and it was competent for him to show that he, at the time, disavowed any knowledge of the intentions of the testatrix. It was also competent for him to show what he did say to Strong, as bearing on the question of undue influence. One of the answers read by the defendants related to the physical condition of the testatrix. Her mental condition might be affected by her physical condition : all of the deposition upon that subject was therefore competent. It does not change the result that the defendants used portions of the deposition to contradict Strong, and not as substantive testimony. The answers read by the defendants related to one conversation between Strong and the plaintiff; and the general rule applies, that all of the conversation on the same subjects is admissible. If more of the deposition was read than was necessary to explain the portions read by the defendants, it related to immaterial matters, and as it does not appeal- that the trial was affected thereby, no reason is furnished for disturbing the verdict. 3. The third issue was, whether the will was signed and sealed by the deceased. Whether the executor is or is not bound by a general and inflexible rule of law to call the subscribing witnesses on issues of insanity and undue influence (Perkins v. Perkins, 39 N. H. 163, 167, Boardman v. Woodman, 47 N. H. 120, 132, 140, 141, Hardy v. Merrill, 56 N. H. 227, 233), the usage of requiring him to call them before reading the will is a practice which there is no occasion to discontinue, and should not be departed from without good reason. The plaintiff was required to call two before *456 'he read the will to the jury, and was not at that time required to call the third, because the court understood the third was not within reach of process, and could not be produced. As soon as the will was read, the third, being present, was called by the plaintiff. It does not appear that the time of his giving his testimony was prejudicial to the defendants. ■ 4. Whether a party calling a witness whom he finds hostile shall have leave to put leading questions in the nature of cross-examination, is a matter within the discretion of the court at the trial. Wells v. Iron Co., 48 N. H. 491, 540. From the decision of the presiding judge, unless the question of discretion is reserved there is no appeal. Bundy v. Hyde, 50 N. H. 116, 120. A party may prove the previous contradictory declarations of a witness whom he has called to the stand, when it is established that he was surprised at his testimony, and was not guilty of collusion or bad faith, and that the witness was adverse to him. Hurlburt v. Bellows, 50 N. H. 105, 116. The common-law rule, forbidding a party to discredit his witness, has no application when the party by legal intendment has no choice, as- in the case of an attesting wit-mess. Chamberlayne’s Best on Ev., s. 644, n. 3, and authorities cited. The testimony of Mrs. Pierce, Dr. Blair, and Mr. Bussell was not inadmissible. 5. We discover no error in the rejection of the memorandum of the volume and page in which the deed from David Whitman to Samuel Whitman was recorded, there being no controversy as to the fact of such conveyance, and no dispute that Tillotson had the 'conversation with the testatrix which he testified to, or that he exhibited the memorandum to her. 6. Evidence that the place on which the testatrix lived was the one conveyed by David to Samuel was competent for the purpose of identification. Non constant that she lived there at the time of the conveyance. 7. Evidence that the plaintiff never stole oats from Samuel Whitman was competent as tending to show that the testatrix never made the remark attributed to her in regard to the oats. If the jury should be satisfied that the alleged larceny was never committed, they might disbelieve the testimony of the defendants’ witnesses that the testatrix made such a statement. For the same reason, evidence that the plaintiff did not neglect the management of her farm affairs, and that he did not abuse the Mitchell boy, was competent. 8. As the plaintiff testified from his knowledge as to the sources from which the estate of the testatrix came, the evidence is not open to the objection that the best evidence was not produced. The evidence was not in regard to what estate she inherited from .Samuel, but that his estate was the source from which some of her estate came. 9. The evidence of Mrs. Pierce respecting the intemperate hab *457 its of Mrs. Morey’s sons, nephews of the testatrix, was competent as tending to show her feelings towards them, and as an explanation or reason why she left them nominal legacies. It was evidence tending to show that the provisions of the will were in accordance with the intention of the testatrix, and not the result of undue influence. 10. The testimony of Mrs. Pierce, that the testatrix was favorably inclined to the plaintiff, might be the statement of a fact. She was asked what she heard the testatrix say about the plaintiff. The witness, being unable to recall the language used, might state the substance of it as it was impressed on her memory. “An impression of a past fact,” said Sawyer, J., in State v. Flanders, 38 N. H. 324, 332, “ may mean personal knowledge of the fact as it rests in the memory, though the remembrance is so faint that it cannot be characterized as an undoubting recollection, and is therefore spoken of as an impression. This perhaps is the sense in which the word is most commonly used by witnesses in giving their testimony. In this sense the impression of a witness is evidence, however indistinct and unreliable the recollection may be. No line can be drawn for the exclusion of any record left upon the memory, as the impress of personal knowledge, because of the dimness of the inscription. * * * An impression, however, may. mean an understanding or belief of the fact, derived from some other source than personal observation, as the information of others; or it may mean an inference or conclusion of the mind as to the existence of the fact, drawn from a knowledge of other facts. When used in these senses, it is not evidence.” The witness (Mrs. Pierce) did not state the language used by the testatrix, and the question is whether she stated her impression of the substance of what was said as it remained in her memory, or the inference she drew from what was said. Strictly interpreted, the answer of the witness might be her inference from what the testatrix said, which might be incompetent. Hoitt v. Moulton, 21 N. H. 586, 588; State v. Flanders, supra; Kingsbury v. Moses, 45 N. H. 222, 225. But the testimony is capable of another interpretation. Tiie meaning of the witness might be that she gave the substance of what the testatrix said as it lay in the memory. A witness’s meaning is often a question of fact properly determined at the trial, whore some iight may be derived from his appearance and manner of testifying. Many such questions are necessarily passed upon by the court or the jury at the trial, and are so far questions of fact that they cannot be considered at the law term. In this case the admission or rejection of the evidence would not be error of law. 11. If Mrs. Tillotson’s testimony, that the plaintiff’s wife told her that the Morey,boys were drinking people, was competent evidence on the issue of undue influence, it was competent for the plaintiff to rebut that inference by showing that the subject of their intemperate habits was common talk. *458 12, 13. The evidence introduced by both parties on the immaterial question of the drinking habits of the plaintiff’s wife, is no cause for a new trial. 14. The first instruction requested was in effect and substance included in those given. The second instruction requested assumes as matter of law what should be left to the jury to find as matter of fact. The request was properly denied, as also was the third. The question whether or not a will is entitled to probate does not depend upon the ability of its proponents to explain why the testator made it as he did. The statutory right of every person to dispose of his estate by will does not depend upon the condition that its provisions shall be reasonable, or consistent with his duties to his family. If they are unreasonable, or inconsistent with his duties to his family, that fact may have weight in -determining the issues of sanity and undue influence, but it is not the test for admitting the will' to probate; nor will the failure of the proponents to explain the motives of the testator lead to the setting aside of the will. The instruction requested is equivalent to the proposition' that unless the provisions of a will are reasonable, or if unreasonable unless the proponents present a reasonable explanation of its unreasonable provisions, it cannot be admitted to probate. Such is not the law. Lord v. Lord, 58 N. H. 7, 11. 15. No reason is suggested why the instructions given in Ahearn v. Mann, 60 N. H. 473, as to the importance and duty of the jury’s agreeing, were not proper on this occasion. The exceptions are overruled, and the Decree of the probate court reversed. Blodgett and Bingham, JJ., did not sit: the others concurred.