Gleason v. Daly

Hammond, J. One of the issues was whether at the time of the execution of the will the testator was of sound and disposing mind and memory; and on this issue the evidence was conflicting. The will was executed in a ward of a hospital, and there were in the ward at the time three persons besides the subscribing witnesses. Tileston, one of these three, was called in support of the will. He testified among other things that when the will was presented to Griffin, the testator, he was told, “ This is your will giving all your property to Gusty [the petitioner],” and was asked if he wanted to sign it; that Griffin nodded his head and reached for the pen. He further testified that he saw Griffin take a teacup in his hand and drink from it on or about the day the will was executed, and that on various occasions he had asked Griffin how he was and Griffin had answered “ Pretty well.” On cross-examination the witness was asked if he had not said to one Sullivan, the orderly at the hospital, on the same day the will was executed, “ That it was a shame to make that man make a will. They might as well have a dead man.” The question was objected to by the appellee as calling for the opinion of the witness on the testator’s mental capacity; but the appellant stated that the question was asked with the intention of contradicting the witness, if he should answer in the negative, by calling Sullivan. The justice excluded the question, the appellant excepted, and the only matter for us to determine is whether there was error in law in excluding this question. Since Tileston was not qualified to express an opinion upon [350] the sanity of the testator, the only ground upon which the question was admissible, if at all, was that an answer in the affirmative would tend to contradict his previous statements and thus weaken his credibility. Tileston had not expressed any opinion as to the sanity of the testator. He had simply testified to certain very simple physical acts of the testator. The statement which it is said he made to Sullivan, when fairly considered, is rather a statement respecting the mental capacity of the testator than his physical condition, and there was danger that it would be regarded by the jury as affirmative evidence of the testator’s mental capacity. Under these circumstances the justice was justified in holding somewhat strictly to the rule as to contradictory evidence; and he may have concluded that the alleged statement was so vague and indefinite as not to have any tendency to contradict the witness. In coming to such a conclusion we do not see that he committed any error. The case differs from cases like Hathaway v. Crocker, 7 Met. 262, and Brown v. Brown, 108 Mass. 386, and should stand with Hubbell v. Bissell, 2 Allen, 196, and similar cases. Exceptions overruled.