Bodfish v. Cross

Jenney, J. The only question is, whether there was error in the exclusion of declarations made by a deceased person and offered in evidence under R L. c. 175, § 66. [431] During the trial of issues involving the soundness of mind of the alleged testator, and undue influence alleged to have been exercised upon him, by Semira D. Ellis, Lelia M. Ellis, and John D. W. Bodfish in procuring the execution of a will and codicils, Harriet A. Fish was examined concerning a statement, which, it was contended, had been made to her by her brother, Roland J. Green, who had died in the lifetime of the testator. An offer of proof was made that the brother had said to the witness that the testator had asked him to tell her that he would like “to come and see her, but the Ellises will not let” him. If the brother had been living and had been a witness, his evidence to that effect clearly would have been admissible, the statement having been made within the period to which testimony had been limited by the judge. There had been introduced evidence of impaired mental condition and undue influence by Semira D. Ellis and Lelia M. Ellis, sufficient to furnish a basis for the admission of the statement. The statute requires a preliminary finding by the court, that the declaration offered “was made in good faith before the commencement of the action and upon the personal knowledge of the declarant.” The presiding judge, who excluded the evidence, found, at the preliminary hearing required by the statute, that the deceased brother made the statement to the witness, and said: "Beyond . that I am not satisfied.” He did not find that the statement was made in good faith. On the record, this action cannot be said to be unjustifiable, and therefore it is not reviewable. McSweeney v. Edison Electric Illuminating Co. 228 Mass. 563. In the absence of such finding, the evidence was properly excluded. Slotofski v. Boston Elevated Railway, 215 Mass. 318. Exceptions overruled.