Logan v. McGinnis

The opinion of this Court was delivered by Rogers, J. The subscribing witnesses to a will may testify their opinion of the sanity of the testator: other witnesses may testify to facts, from which the Court and jury may form an opinion whether the testator was of sound mind. This is ruled in Poole v. Richardson, 3 Mass. R. 330. This is a distinction which I have never heard disputed, for the very object of placing them around the testator, is to try, judge, and determine whether he is competent to execute the instrument. The subscribing witnesses testify their opinion; other witnesses testify to the appearance of the testator or to any other particular fact, from which the state of his mind may be inferred. It is to the latter class of cases, not to the former, the authorities cited, apply. This disposes of the second bill; but in addition, it is plain the testimony of the witness was to facts, not opinions, and would have been competent testimony independent of the circumstance that he was a subscribing witness. There is nothing in the objection to the third bill that it was a leading question. It was not opposed on that ground. If it had been, the defendants would have been at liberty to vary the form of the question. It is contended there was error in refusing to allow the plaintiffs to examine George Glass, for the purpose of contradicting the answers of James McGinnis to the 7th and 8th interrogatories by the [32] defendant. The defendant, as appears, took the deposition of McGinnis, and read it on the trial, •without exception, declining, for reasons satisfactory to himself, to read the answers to the 7th and 8th interrogatories. This the plaintiffs might have prevented by an exception; for a party who offers in evidence a deposition taken in his behalf must read the whole, and cannot select portions and omit others, as is ruled in Southwark Insurance Company v. Knight, 6 Whart. 329. Instead of pursuing this o'bvious course, they allowed a portion of it to be read, and now endeavour to cure this omission by turning round and reading the answers themselves, for the solé purpose of contradicting the testimony. This cannot be done.. It has been ruled (which is an analogous case) that you have no right to propound questions to a witness for the mere purpose of discrediting him by testimony of other witnesses to the same fact. To permit this course would lead to outrages on the rights of witnesses^ who may be entrapped by artful and insidious questions asked for the sole purpose of bringing them into discredit and reproach. Witnesses have rights, as well as parties, which are entitled to the protection of the Court. It is insisted there is error in not charging as requested in plaintiffs’ 1st, 2d, 3d, 4th, and 5th points. The error, it is true, is incorrectly assigned, as the points referred to were reserved by the Court and were not charged on at all. The assignment should have been to the judgment of the Court on the points reserved. We think, however, the error is substantially assigned. If necessary, we would allow the party to amend, as wq would not permit the title to be tripped up by a mere matter of form. The error goes to the title. Was there then error in the judgment of the Court on the points reserved ? We think not. The testator being proved to be of sound, disposing mind and understanding, it passes a title to the land in controversy to the defendant. It is not true that the defendant failed to comply with the conditions contained in the will. The article of 29th May, 1848, which is contemporaneous with the will, is a full compliance with all the stipulations contained in the contract. We see nothing in the agreement contrary to any known rule of policy. It is nothing more than a contract, by which a person in the decline of life makes a comfortable provision for himself and wife, for their old age. If they can make an absolute conveyance of all their property for such a consideration, as they undoubtedly can, what is to prevent them from doing the same thing in the form of a will ? Here the parties [33] have carried the contract into effect in good faith, and it is heirs who have no equity, who are endeavouring to disturb the arrangement. Were it even an executory agreement, the party having failed to make á will, equity, no doubt, would decree a conveyance, and a jury would give damages to the amount of the value of the property. But be this as it may, we' see nothing to invalidate the title which the defendant acquired under the will. The case cited from 2 W. & S. 145, Todd’s case, has no application whatever. All that is ruled there is that when one in contemplation of a journey thus begins an informal testamentary paper,—“My wish, desire, and intention now is, that if I should not return (which I will, no preventing Providence), what I own shall be divided as follows,”—upon his return and subsequent death, the instrument ought not to be admitted to probate. It is very clear that it was a provisional arrangement, to be effective only in case he never returned from his contemplated journey. We do not see the slightest resemblance to this case. It is sufficient answer to the 5th and 6th errors that no exception is taken to the charge, and, if it had been, so far as regards the 7th, 8th, 9th, 10th, and 11th points, the Court, so I understand it, gave them an affirmative, direct, and specific answer. Judgment affirmed.