The question asked the witness Mix, on cross-examination, if he had not heard Mr. Webb testify to certain facts in the Court of Probate, without correcting him, was properly excluded. It does not appear that Mr. Mix was present when the last will was prepared, nor that he had testified to what occurred at that time. The facts implied in the question did not therefore contradict his testimony. Nor would Mr. Mix have been called upon to correct a witness in the Court of Probate who, he may have thought, was testifying incorrectly. Such inquiries should not be permitted when their evident purpose is to intimate that some other witness has testified differently from the one under examination. *Page 315
The rulings of the court excluding certain questions asked the witnesses Mr. and Mrs. Webster and Mrs. Newton, and excluding or striking out their answers, do not furnish sufficient grounds for granting a new trial: first, because if such rulings were erroneous the errors seem to have been corrected by afterwards permitting these witnesses to fully answer the questions which had been excluded; and second, because the record does not so clearly state either the grounds upon which the questions and answers were excluded, or upon which they were objected to, that we can say with certainty that the rulings were erroneous.
The inquiries excluded called for answers from non-expert witnesses in the nature of opinion evidence, concerning the mental condition of the testatrix. The mere opinions of such witnesses are never received. They are admissible only after a sufficient statement of the particular facts upon which they are based, or after the witness has been shown to have sufficient means and opportunities of personal observation to enable him to form a reasonably correct conclusion. They are received rather as statements of impressions or conclusions in the nature of facts of which the witness has knowledge, than as opinions. Their reception is rendered necessary because of the difficulty of so detailing and so reproducing the numerous particular facts upon which they are founded as to produce upon the triers the impression received by the witness, or to enable them to draw a fair inference from such facts. The value of such a statement when given by a candid and impartial witness, depends largely upon his intelligence and upon his opportunities and habits of observation. 1 Greenl. on Ev. § 440 and note; Cavendish v. Troy, 41 Vt. 99;Conn. Mut. Life Ins. Co. v. Lathrop, 111 U.S. 612, 619;Sydleman v. Beckwith, 43 Conn. 9; Ryan v. Bristol, 63 id. 26; Kimberly's Appeal, 68 id. 428.
The record before us does not assume to give the examination of these witnesses in full. If the trial court excluded these questions because the witnesses had not been shown to have had sufficient opportunities of observation to qualify them to express an opinion or conclusion upon the subject of *Page 316 the inquiries, we cannot, from the testimony as set forth in the finding, hold that such decision was erroneous. When in trials involving the question of testamentary capacity it is desired that a witness who has testified to sufficient facts should also give his opinion as to the mental condition of the testator, a common and proper form of inquiry is, "Was or was not the testator in your opinion a person of sound mind?" For the purpose of showing the extent of mental impairment it is not unusual nor improper to ask a duly qualified witness whether in his opinion the testator possessed sufficient understanding to be able to transact the ordinary business matters incident to the management of his household affairs and property. Keithley v. Stafford, 126 Ill. 507,520. The mental power required to attend to such ordinary affairs may be regarded as so much a matter of common knowledge and experience as to be a fair standard of comparison readily understood by both witness and jury, by which to illustrate the degree of intelligence of one whose mental condition is the subject of investigation. It has been held to be proper to permit a witness to compare the mental power of the testator to that of "an average child of seven or eight years." Richmond's Appeal, 59 Conn. 226, 242. A witness may of course always testify to the fact, when such fact is within his personal knowledge, that the testator's mental state was such that he was or was not able to transact business, or to do any other particular act which would indicate the condition of his mind.
It is not error to refuse to allow a non-expert witness to state his opinion whether a testator was capable of making a will. Crowell v. Kirk, 3 Dev. 355, 358; Farrell v. Brennan,32 Mo. 328; White v. Bailey, 10 Mich. 155, 159; Fairchild v. Bascomb, 35 Vt. 398, 414; Schneider v. Manning, 121 Ill. 376,386. What constitutes testamentary capacity is a question of law which witnesses and jurors are not ordinarily competent to answer correctly. Their views upon that question would probably differ from each other as well as from the rule laid down by our law upon that subject. Various tests of the capacity essential to enable one to make a valid will *Page 317 have been adopted even by the courts. It was formerly held that imbecility of mind not amounting to idiocy or lunacy would not incapacitate one from making a will. Blanchard v.Nestle, 3 Denio, 37; Stewart v. Lispenard, 26 Wend. 255. Some courts have held the mental ability to execute a valid deed or contract to be the proper measure of testamentary capacity.Stewart v. Elliott, 2 Mackey, 307; Coleman v. Robertson,17 Ala. 84. Others, that the possession of sufficient mind and memory for the transaction of ordinary business is the true test of capacity to make a valid will. Barnes v. Barnes,66 Me. 286. In this State one may make a valid will though mentally incapable of transacting business generally. The test which we apply is the ability of the testator at the time of the execution of the will to understand the nature and elements of the particular transaction of making a will in which he is engaged, and it is a part of the duty of the court in charging the jury, to instruct them as to the elements of the act of intelligently disposing of one's property by will, which the testator should have been capable of comprehending.St. Leger's Appeal, 34 Conn. 434, 448. It was not error to exclude the answer of the witness Mrs. Webster, that she did not think the testatrix capable of making a will.
The fact that the testatrix's mind was weak, testified to by Charles H. Webster, in answer to the question of appellant's counsel, was material and relevant to the issue, and having been claimed by counsel examining the witness, the answer should not have been stricken out upon motion of the opposing counsel, merely because it was irresponsive. Such an order of the court, however, furnishes no ground for complaint when, as in this case, counsel is permitted to put another question to which the excluded answer is responsive.
There was no error in the ruling of the court admitting the testimony of Judge Bishop concerning his conversations with the testatrix. The burden rested upon the appellant to show that the conversations occurred while the testatrix was consulting the witness professionally as an employed attorney. Carroll v. Sprague, 59 Cal. 655. At the time of the objection no preliminary examination seems to have been *Page 318 made for the purpose of proving that fact, nor has that fact been found by the court. The only facts found in connection with the ruling are, that the witness had testified to his acquaintance with the testatrix for many years, to having had frequent opportunities of observing her and frequent conversations with her. That the facts which appear elsewhere in the record with reference to his having acted as her attorney, were known to the court when the objection was made, cannot be assumed. Even those facts fail to show that these conversations occurred while the testatrix was consulting Judge Bishop as her attorney.
But the rule which forbids an attorney from disclosing as a witness matters communicated to him in professional confidence, should be strictly construed as tending to prevent a full disclosure of the truth in court, and we think that the testimony admitted does not amount to a disclosure by the witness of a confidential and privileged communication made to him as an attorney, by his client, even if we assume the existence of the relation of attorney and client between them at the time of the conversations in question. Foster v. Hall, 12 Pick. 89, 98; Gower v. Emery, 18 Me. 79. The testimony was, in substance, merely that she talked to him about the settlement of an estate; that she wished him to ascertain for her how much she was likely to receive from it, which he did, and that she directed him to appear before the Court of Probate to procure the reduction of certain fees to which she objected. Such a request by a client to his attorney, made for the purpose of obtaining information for the former's benefit, upon a matter of fact, and not for the purpose of asking the attorney's advice, ought not to be regarded as a privileged communication. Weeks on Attorneys (2d ed.), p. 328. An attorney may properly be required to testify by whom he is employed and in what capacity. Satterlee v.Bliss, 36 Cal. 489; Gower v. Emery, 18 Me. 79.
The appellant has no reason to complain of the failure of the court to charge the jury in the language of the first request. The court correctly defined testamentary capacity, and charged that the burden of proving that the testatrix *Page 319 possessed such capacity at the time of the execution of the will rested upon the proponents of the will. The court further charged that in case there should be "an uncertainty in the minds of the jury so that they could not say upon which side of that issue the evidence preponderated, their verdict should be against the party upon whom rested the burden of proving it." This was more favorable to the appellant than the instruction asked for, which was, in effect, that the appellant was entitled to a verdict if the evidence showed a want of testamentary capacity.
The court properly refused to charge in the language of the second request. The record discloses no admission by the appellee of the facts stated in the request. It was incumbent upon the appellant to prove the asserted confidential relations. Richmond's Appeal, 59 Conn. 226. The court rightly left it to the jury to decide whether the claimed relations of confidence and trust existed between the testatrix and Mr. Mix, and correctly instructed them that if the evidence disclosed the existence of such relations it became "incumbent upon the proponents of the will to show that he (Mix) acted fairly, and that he took no advantage of his position to induce or to procure the making of the will, or any part of it, in his favor."
The language of the charge defining undue influence was approved by this court in the case of Dale's Appeal, 57 Conn. 127,145.
The 13th and 14th reasons of appeal present no questions for our consideration. Clearly it was not intended by these assignments of error to say that parts of the charge manifestly favorable to the appellants, were erroneous; as, for example, that the burden of proving testamentary capacity rested upon the appellee, and that it should be proved by a fair preponderance of evidence. The purport of these reasons of appeal is that there was error in something which the court said in its charge upon these subjects. They fail to comply with the rule. Practice Book, p. 258, Rule XIV, § 1; Simmonds v. Holmes, 61 Conn. 1, 9.
In Richmond's Appeal, supra, p. 245, the trial judge in its *Page 320 charge to the jury made use of this language: "Mere physical weakness or disease, old age, eccentricities, blunted perceptions, weakening judgment, failing memory or mind, are not necessarily inconsistent with testamentary capacity. One's memory may be failing and yet his mind not be unsound. One's mental powers may be weakening, and still sufficient testamentary capacity remain to make a will." In granting a new trial upon an appeal, this court said concerning that part of the charge: "This is undoubtedly true, but such facts are admissible in evidence upon the question of capacity, and it was mainly by proof of their existence that the appellants sought to establish the want of such capacity. The court therefore in charging as it did, and in entirely failing to make reference in any portion of the charge to the significance of such facts as evidence, would seem rather, in effect, to have withdrawn them from under the eyes of the jury, and from their consideration of them as such evidence, and thereby may, and we fear must, have misled the jury, to the injury of the appellants."
The appellant claims that the court made the same mistake in the case at bar. A distinction may be drawn between this case and Richmond's Appeal. In this case the court did not entirely fail to refer to the evidence of a weakened mind, etc.; on the contrary, it directly refers to the evidence of these facts in connection with the other evidence indicating the mental condition of the testatrix, as proper to be considered by the jury in passing on the question of testamentary capacity, which was accurately defined by the court. All the evidence bearing on the question of capacity was unqualifiedly submitted to the jury for their consideration. The court may properly submit the evidence in such manner as to intimate an opinion in respect to its weight, as undoubtedly was done in this case, so long as it does not exceed the limits of its powers by a practical withdrawal of competent evidence from consideration by the jury. Kimberly's Appeal, 68 Conn. 428,441; First Baptist Church v. Rouse, 21 id. 160, 167;State v. Rome, 64 id. 329, 337-339; State v. Smith, 65 id. 283.
In Richmond's Appeal there was a total absence of any *Page 321 reference to the evidence on which the appellant relied; there was error in the admission of testimony and error in other parts of the charge, which were mainly relied on for obtaining a new trial. Indeed the error in not commenting on testimony of a weakened mind, etc., is hardly specified in the reasons of appeal, and but slightly referred to in briefs of counsel.
It would be difficult, however, to distinguish the two cases, if the portion of the opinion above quoted is treated as establishing a rule of law. We think it should not be so treated. The failure to caution the jury in respect to the weight of evidence is error per se in the case of the admission of the testimony of an accomplice; but ordinarily the propriety of comment on testimony depends on the circumstances of each case. It is not true that a failure to comment on the weight of evidence of a weakened mind, etc., in connection with a statement that such facts, if proved, do not necessarily establish testamentary incapacity, must always be treated as error. The circumstances of a case may be such that a total failure to comment may seem to be equivalent to a withdrawal of the evidence, and so mislead the jury to the injury of a party, as we thought in Richmond's Appeal; but the circumstances may be such that a slight reference to such testimony is not equivalent to its withdrawal, but is simply a proper exercise of the discretion of the judge in intimating his opinion as to the weight of evidence, as is the case at bar. The question is always largely one of fact — does the charge of the court, in view of all the circumstances, pass beyond the limit of proper comment so as to submit the testimony unfairly or practically invade the province of the jury in passing on the weight of evidence? If so, a new trial may be granted. The charge of the court below does not call for a new trial for such reason.
There is no error.
In this opinion the other judges concurred.