Wilcox v. Forbes

Holmes, J. This is a bill to have certain instruments can-celled, on the ground that the maker of them, since deceased, was of unsound mind. At the hearing the plaintiffs put in evidence that the deceased was suffering from senile dementia, and offered some photographs of him in corroboration, which he asked the judge to rule to be admissible for that purpose. The judge declined, and the plaintiff excepted. The question whether 65 the photographs were instructive was a preliminary question, to be decided by the judge before he admitted them as evidence in the cause. Carey v. Hubbardston, 172 Mass. 106. Harris v. Quincy, 171 Mass. 472. If, as for all that appears was the case, the judge found them uninstructive, he was right in refusing to rule as requested. It would seem that he must have inspected them, and, as he was sitting without a jury, his refusal to rule probably meant little more than a finding that they did not help him in coming to his conclusion. Evidence was admitted, subject to exception by the plaintiffs, that the administrator of the estate of the deceased had made no objection to the validity of the transaction. The admission was made harmless by rulings that the rights of the plaintiffs were not affected by the administrator’s conduct. Furthermore, the administrator would seem to have been the holder of security given by the defendants, and concerned in the question whether the transaction should be rescinded. See further Bullard v. Moor, 158 Mass. 418, 424, 425. Exceptions overruled.