Ratigan v. Judge 181 Mass. 572

John B. Ratigan, executor, vs. Thomas Judge.

Worcester.

March 18, 1902.

June 17, 1902.

Present: Holmes, C. J., Knowlton, Morton, Lathrop, Barker, Hammond, & Loring, JJ.

Evidence, Opinion.

On the issue of soundness of mind a witness not an expert cannot he asked whether an alleged testator was subject to delusions or hallucinations.

Appeal from a decree of the Probate Court of the County of Worcester, allowing a certain instrument as the will of one Lackey Judge.

The case was sent to the Superior Court for the trial of issues framed by a justice of this court. The issues were as follows : “ First. Was the instrument propounded as the last will and testament of Lackey Judge duly executed in accordance with law? Second. Was the said Lackey Judge, at the time of the execu-. tian of said will, of sound mind? Third. Was said Lackey Judge procured to execute said will by fraud and undue influence exercised upon him by Andrew Judge and Mary Judge, or one of them.”

At the trial of the issues before Fox, J., the appellant offered in evidence the depositions of certain persons living in Clinton, Missouri. Each of these depositions contained the question in regard to the alleged testator “Was he subject to delusions or hallucinations ? ” The questions and the answers to them were *573excluded by the judge, and the appellant excepted. None of the witnesses were qualified as experts. The excluded answers were, in substance, that the alleged testator was under a delusion that some one was trying to poison him or that he was being poisoned.

The jury answered the first two issues in the afBrmative and the third in the negative, thus sustaining the will; and the appellant alleged exceptions.

The case was submitted on briefs at the sitting of the court in March, 1902, and afterwards was submitted on briefs to all the justices.

W. 0. Mellish Sp Gr. K. Hudson, for the appellant.

J. B. Ratigan, H. Parker, R. P. Esty, for the executor.