Old Colony Trust Co. v. Di Cola

Carroll, J. This is an appeal from a decree of the Probate Court allowing the will of Gaspare Di Cola. Issues were framed and the trial was in the Superior Court. The woman, Antonina Bova, described in the will as the wife of the testator and known as Mrs. Di Cola, kept house for him for several years. He bequeathed to her the furnishings of the home, jewelry and Italian government bonds. She was also to receive $100 a month during her life, and in addition was given the use of a tenement in the testator’s house in Brookline. The remainder of his estate was given to his brother. The jury found that the will was executed according to law, that the testator was of sound and disposing mind and memory at the time of its execution and that the will was not procured through fraud or undue influence. We deal with the questions raised by this bill of exceptions in the order in which they are discussed by the appellant. 1. One of the witnesses to the will, after testifying that on the day of the testator’s funeral Mrs. Bova told him she was not Di Cola’s wife, was asked what she said about the beginning of her relations with Di Cola, it appearing that the intimacy between them began in Sicily, where they both lived, more than twenty-five years before his death. It is argued that this evidence was admissible to affect the credibility of Mrs. Bova; but there is nothing in the record to show that when the evidence was offered Mrs. Bova had testified. It was not admissible as an admission made by her, for while she was one of the parties charged with unduly influencing the testator, and a beneficiary under the will, the issue before the jury was not the validity of the bequest to her, but the validity of the whole will, and one of the beneficiaries could not prejudice the rights of the other legatees by admissions indicating her fraud or undue influence in procuring the execution of the will. Aldrich v. Aldrich, 215 Mass. 164. McConnell v. Wildes, 153 Mass. 487, 489, and cases cited. 2. The appellant offered to show by Antonino Bova, a son of Mrs. Bova, the circumstances and surroundings of his aunt with whom he was left in Italy twenty-four years before, when his mother came to this country. No offer .of proof was made; and even if the condition in life of the aunt were relevant, the occurrence was so remote that the judge in the exercise of his discretion — 124 — might properly exclude it and his decision is not to be reversed unless it is clearly unfounded. The evidence of Bova relating to the quarrels between Di Cola and his mother was properly excluded for the same reason. Johnson v. Foster, 221 Mass. 248, 252. Aldrich v. Aldrich, supra. Jenkins v. Weston, 200 Mass. 488. Batchelder v. Batchelder, 139 Mass. 1. 3. Mrs. Bova secured a divorce from her husband which became absolute in June, 1916. After she had testified, her attorney in the divorce proceedings was permitted to testify to certain statements made by her, solely for the purpose of contradicting her. The appellant excepted to the exclusion of the evidence of the son Antonino Bova, to the effect that he went to the' attorney’s office and complained of the relationship existing between the testator and his mother and that the divorcé proceedings were the result of his efforts. The record does not show at what stage of the trial this evidence was offered. The statements of Bova to his mother’s attorney were not admissible, and his efforts in securing the divorce were not material to the issue on trial. 4. The testator was shot on the evening of September 20, 1916. He was taken to the hospital where he arrived about 10:45 that night, and died about five o’clock on the morning following. Dr. Albert Ehrenfried testified that he was a surgeon whose practice was confined to surgery from the time of his graduation; and although he had taken such courses in mental diseases as were offered at the medical school “in addition to practical work at the Boston Insane Hospital, clinics at Danvers [Insane Hospital], clinics at the School for the Feeble-Minded at Waverley,” he had not attempted to treat any cases of mental disease. He gave his opinion that the testator died of surgical shock; and that surgical shock causes anaemia, mental apathy, torpor and dulled senses. He was not allowed to give his opinion of the testator’s soundness of mind from the time he was shot . until the time of his death. In this Commonwealth, only the witnesses to the will, the testator’s family physician, and experts of skill and experience in the knowledge and treatment of mental diseases, are competent to give their opinions of the testator’s mental condition. May v. Bradlee, 127 Mass. 414, 421. See Commonwealth v. Rich, 14. Gray, 335; Emerson v. Lowell Gas Light Co. 6 Allen, 146. — 125 — . The mere fact that a witness is a surgeon or a physician does not of itself qualify him as an expert in mental diseases. It requires special skill and experience in the knowledge and treatment of such diseases to make a physician or surgeon competent to give his opinion on the subject. Boston Safe Deposit & Trust Co. v. Bacon, 229 Mass. 585, 590, and cases cited. Whether a witness has sufficient knowledge, learning and experience to state his opinion must be left largely to the discretion of the presiding judge, Union Glass Co. v. Somerville, 228 Mass. 202, Barker v. United States Fidelity & Guaranty Co. 228 Mass. 421, Jordan v. Adams Gas Light Co. 231 Mass. 186, 189; and we cannot say that there was reversible error in refusing to allow him to express his opinion of Di Cola’s soundness of mind. 5. Wayland F. Dorothy, Esquire, who drew the will and was present when it was executed, though not a subscribing witness, was asked if he heard Di Cola say or do anything which indicated he was not of sound mind; he answered he did not, to which the appellant excepted. Dorothy was not asked his opinion, but to state the facts as he observed them; his attention was called to the acts and statements of Di Cola: the evidence was " admissible. Gorham v. Moor, 197 Mass. 522, and cases cited. 6. Mrs. Bova testified that Di Cola, both before and after the divorce was granted, promised to marry her. She was then asked if the grounds of her divorce were the desertion of her husband. This evidence was properly excluded: it had no bearing on the issue before the jury. The testimony of tiré1 police sergeant describing what occurred at the Di Cola home was also properly excluded: it had reference to an occurrence six years before the time of the trial, and was so remote that the judge could rightly refuse to admit it. Jenkins v. Weston, supra. There was no error in the manner in which the judge dealt with the testimony of the attorney who acted for Mrs. Bova in the divorce proceedings: he was permitted to testify to her statements which tended to contradict her, and for this purpose the testimony was admissible; the additional evidence excluded was immaterial. 7. The appellant asked for certain instructions dealing with the effect of gross inequality in the disposition of the estate as evidence of fraud or unsoundness of mind. While the jury had a right to consider the reasonableness of the will, the mere fact — 126 — that it was in the opinion of the jury unreasonable, was not of itself sufficient to show that it was the result of undue influence or unsoundness of mind. Davenport v. Johnson, 182 Mass. 269. The jury were fully and accurately instructed on this point. There was no error in what was said to the jury concerning the divorce libel and Mrs. Bova’s statements to her attorney as affecting her credibility. We find no error in the conduct of the trial. Exceptions overruled.