The principle is well settled that witnesses cannot in general be allowed to testify to opinions, as distinguished from facts. The theory of jury trials requires that the jurors should be informed by the witnesses of the material facts involved in the issue, and then be left to draw their own conclusions from those facts. (Lamoure v. Caryl, 4 Denio, 370; Fish v. Dodge,id., 311, 318; Norman v. Wells, 17 Wend., 136, 161; ThePeople v. Rector, 19 Wend., 569, 576.) But the rule is not universal. It is only where, from the nature of the inquiry, the jury are as competent to form a judgment from facts submitted to them, as a witness, that opinions are excluded. (Lamoure v.Caryl, sup.) Hence, a well established exception exists in regard to witnesses skilled in any art or science, where the inquiry requires the exercise of such skill. (Jefferson Ins.Co. v. Cotheal, 7 Wend., 78.) So where the value of property is in question, witnesses are allowed to state their judgment. (Joy v. Hopkins, 5 Denio, 84.) So also, the opinions of witnesses are received where it becomes material to show the state of the affections of a party. In McKee v. Nelson (4Cow., 355), which was an action for the breach of a promise of marriage, the plaintiff's counsel was permitted to inquire of witnesses who knew the plaintiff and had observed her conduct and deportment *Page 389 during the time the defendant was paying his addresses to her, whether, in their opinion, the plaintiff was sincerely attached to the defendant. On a motion for a new trial for misdirection, the court held the ruling correct, and remarked that there were a thousand nameless things indicating the existence and degree of such an attachment which language could not specify. The opinions of witnesses on such a subject, the court say, "must be derived from a series of instances passing under their observation, which yet they never could detail to a jury." The same principle has been recognized in the English courts. In Trelawney v. Colman (2 Stark., 191), in an action for criminal conversation, HOLROYD, J., allowed a witness who was accquainted with the plaintiff's wife to state the opinion she had formed during that acquaintance as to her affection for her husband, the plaintiff; and the court refused a rule nisi for a new trial.
The difficulty of spreading the whole case before the jury by a detail of the acts and conversation of the party is at least as great where the question relates to his mental capacity, as in the instances referred to. In a case of doubtful competency, witnesses will ordinarily be produced who knew the individual when in health, who have observed the changes which have since taken place, and have incidentally tested his memory and judgment in a great number and variety of instances in the routine of social and domestic life, the particulars of which have been forgotten, though the impression caused by them remains upon the mind of the witness. Such a witness, if possessed of discrimination and judgment, will usually have formed an opinion of considerable value as to the capacity of the party for doing an act requiring memory and judgment. But it would scarcely be possible for him to lay before a jury all or the greater part of the circumstances upon which his opinion is based. The judgment which we form as to the mental condition of an acquaintance depends as much upon his looks and gestures connected with his conversation and *Page 390 conduct as upon the words and actions themselves, and yet it would be a hopeless task for the most gifted person to clothe in language all the minute particulars, with their necessary accompaniments and qualifications, which have led to the conclusion which he has formed. I am of opinion that the question of testamentary competency, or what is the same thing, of mental capacity to do an act requiring the faculty of judgment and memory, does, upon principle, form a well defined exception to the rule which excludes the mere opinion of a witness; and unless the point has been otherwise settled by adjudications which we are bound to regard, the ruling in this case should be sustained.
In testamentary cases in England I am satisfied that it is the universal practice of the spiritual courts to receive the opinions of witnesses who are acquainted with or have seen and conversed with the alleged testator as to his competency. InWhite v. Driver (1 Phillimore, 84), which was the case of a contested will, Sir JOHN NICHOLL laid great stress upon, if he did not wholly decide the cause in consequence of, the favorable opinion of a friend of the deceased, and of his clergyman, solicitors, nurses and apothecaries, against pretty strong testimony on the other side. Kinleside v. Harrison (2Phill., 449) arose upon the probate of the will and codicils of a person ninety years old. A great number of witnesses were examined upon the question of the capacity of the deceased, who freely gave their opinions upon one side or the other, differing very much in their conclusions. Sir JOHN NICHOLL commenced his elaborate judgment by some remarks upon the difficulty of cases of that nature. "In the first place," he said, "it may be observed that a large portion of evidence to capacity is evidence of mere opinion; and upon matters of opinion mankind differ even to a proverb." Farther on he observed that discrepancy would arise, "first, from the different abilities of witnesses to form such opinions; secondly, from their *Page 391 different opportunities of seeing the person; and thirdly, from the different state and condition of the testator's mind at different times. It is certainly true that the study of the human mind is an abstruse science; the different lines and traits of the understanding are matters which attract the notice and consideration of the intelligent. Ignorant persons and enlightened persons will form very different opinions upon subjects of this kind: ignorant persons, servants, and those in their condition, who form their judgments in the conversations of the kitchen circle, are very apt to form erroneous opinions on matters of this sort; and this will be the case even without throwing in the additional ingredient which takes place in those circles, the loose suspicions and prejudices by which their judgments are often biased and carried out of their true course. In the next place, from the different opportunities persons have of judging, they will form different opinions: persons who see a testator only occasionally will form different opinions from those who have better opportunities of judging. We know that little appearances occurring in this way are extremely fallacious, yet we often find occasional observers depose with great confidence. It frequently happens that the most ignorant are the most confident." "This kind of opinion is still more various where the testator's capacity is fluctuating, where he is sometimes better and sometimes worse; and this is generally the case with persons laboring under old age or other infirmities; it is so, even where there is no special attack occasionally operating: accidental cold or other indisposition often renders an old, infirm person worse one day than another. After a good or bad night, a person will be alert or dull: so after a night's sleep a person may be active and capable of considerable exertion even in matters of business, who in the afternoon, when the process of digestion is going on, shall appear drowsy and stupid, and not able to rouse himself into action. The humor of a testator will sometimes make him appear almost fatuous, or induce him to *Page 392 rouse himself into exertion, as the occasion is either interesting or disagreeable to his inclinations. Now these different considerations (and they might be much more spread), while they tend to reconcile the apparent contradiction of witnesses, render it necessary for the court to weigh such evidence with very great attention; to rely but little uponmere opinion; to look at the ground upon which opinions are formed, and to be guided in our judgment by facts proved and by acts done rather than by the judgment of others." I have referred to these remarks so much at large, depreciatory though they are of the kind of testimony in question, in order to show that though opinions are entitled to but little confidence except when connected with and supported by facts, yet that it was not thought of that they might be excluded altogether as incompetent. To show that opinions are habitually received and relied on in these courts, when connected with facts, I may also refer toDew v. Clark (3 Addams, 79); Cartwright v. Cartwright (1 Phill., 90); and Wheeler v. Alderson (3 Hagg., 574).
The point does not seem to have been distinctly decided in the courts of this state, if we except a recent case in the supreme court hereafter noticed. In Jackson v. King (4 Cow., 217, 218), where a conveyance was attacked for the alleged incapacity of the grantor, unprofessional witnesses who were acquainted with him were examined as to their opinions respecting the soundness of his mind, without (so far as it appears) any objection having been taken. Those who testified for the plaintiff based their opinions upon specific facts, which were held by the court not sufficient to warrant the opinions which they expressed. InClark v. Fisher (1 Paige, 171), which was an appeal from a decree of the surrogate admitting a will to probate, testimony of the kind under consideration had been received. In commenting upon it, the chancellor, I think, recognizes the rule as contended for by the respondents in this case. He says, in commenting upon the case, that "the evidence of capacity," *Page 393 "in most contested cases, consists in the opinions of witnesses, sometimes with and frequently without the particular facts on which such opinions are founded." After adverting to the unsatisfactory character of opinions generally, he adds: "It is for this reason that opinions of witnesses are never received in evidence when all the facts on which such opinions are foundedcan be ascertained and made intelligible to the court and jury. And where the opinions of witnesses from the necessity of thecase are received as evidence, the weight of testimony will not depend so much upon the number as upon the intelligence of the witnesses, and their capacity to form correct opinions, their means of information, the unprejudiced state of their minds and the nature of the facts testified to in support of these opinions." What was said by COWEN, J., upon this precise question, in Norman v. Wells (17 Wend., 163), was merelyobiter. He remarks that some courts have, upon questions of insanity, "allowed witnesses to throw in their opinions from what they have seen and heard. But (he adds) I always found that such cases were better tried where opinions were kept entirely out of view; and I have generally excluded them, except where they came from professional men." This is at most an assertion that the rule in that class of cases was unsettled, and that it depended upon the discretion of the particular judge who tried the cause, which would be a most unsatisfactory state of the law. It is impossible to frame a rule which should admit the intelligent, discriminating and unbiased witnesses who had known the individual intimately in all the phases of his mental history, and exclude those of another character, or whose means of observation were more limited; but it could not be endured that it should be left to the judge as a question of competency, whether a witness offered by a party came up to the standard of intelligence and impartiality. *Page 394
The cases of Sears v. Shafer (1 Barb., 408) and Culver v. Haslam (7 id., 314), decided in the supreme court, are too recent to be regarded as binding authority upon this court. In the first of them I do not understand the learned judge to hold that opinions were inadmissible when based upon facts within the witnesses' knowledge. The last mentioned case contains an able examination of the precise question now under consideration; and the conclusion arrived at by a majority of the court, that the opinion of a witness acquainted with the individual whose capacity is in question, in connection with the facts and circumstances within the knowledge of the witness, is admissible, meets with my entire assent.
It remains to notice the course of adjudication upon this point in the other states of the Union.
In Pennsylvania, the point seems to be settled in the manner we are disposed to decide it. In Rambler v. Tryon (7 Serg. Rawle, 90), the right of the defendant depended upon the validity of a will, which was impeached by the plaintiff on the ground of the imbecility of mind of the alleged testator; and witnesses who had known him intimately from his childhood to his death were offered to prove certain facts tending to show an extraordinary dullness of understanding, followed up by the opinions of the witnesses, founded on those facts, that he was incapable from defect of understanding to make a will. The court admitted the evidence and the defendant excepted. In reviewing this ruling, the court said they did not know how otherwise the alleged imbecility of mind could be proved, than by the evidence of those who grew up with him, who marked his conduct in infancy, in the prime of life and in his decline. The opinion of witnesses, they said, without stating the grounds of such opinion, ought not to be received. But when they state facts indicative of want of common intellect their opinion is always received. In Wogan v. Small (11 Serg. Rawle, 141), on the trial of an issue of devisavit *Page 395 vel non, the plaintiff was allowed to ask a witness sworn in his behalf whether from his actual knowledge of Peter Eipe, the supposed testator, he considered him fit or unfit to make a will, and a motion for a new trial for an alleged error in that respect was denied.
The same view has been taken of the question in Connecticut. An action on a promissory note was defended on the ground of the insanity of the defendant. On the trial the court rejected the mere opinions of witnesses, but permitted them to state their opinions in connection with the facts on which such opinions were founded, that there was a continued and uninterrupted lunacy and total want of understanding of the defendant, commencing at a time prior to and continuous at and after the execution of the note. The opinion of the court upon the exceptions was given by Chief Justice HOSMER, who declared that the judge at the trial "discriminated soundly and legally," and that the holding was sanctioned by the usual practice of courts in such cases. (Grant v. Thompson, 4 Conn., 203.) In the subsequent case of Kinne v. Kinne (9 id., 102), similar testimony was received, upon which the court remarked that upon the facts stated in support of the opinions, the triers would draw the inference as to the state of the testator's mind.
In Indiana the rule is stated to be that the opinions of unprofessional witnesses may be taken as to the sanity of a testator or grantor, but the facts upon which the opinions are founded must also be stated. (Doe v. Reagan, 5 Blackf., 217.)
In Tennessee, North Carolina and Ohio, the point has been settled the same way as in Pennsylvania, Connecticut and Indiana. (Gibson v. Gibson, 9 Yerger, 329; Clary v. Clary, 2Iredell's Law Rep., 78; The State v. Clark, 12 Ohio, 483.)
In Vermont it is stated by the court, in two cases which I have examined, that upon questions of insanity, witnesses not professional men may be permitted to give their opinion in *Page 396 connection with the facts observed by them; but in neither of the cases was the question material to the judgment which was given. (Lester v. Pittsford, 7 Verm., 158; Morse v. Crawford, 17 id., 499.)
In the circuit court of the United States, sitting in New Jersey, it was held on the trial of an issue of devisavit velnon that a witness might be asked what opinion he had formed of the sanity of the testator at or about the time of the will being made. (Harrison v. Rowan, 3 Wash. C.C.R., 580.) It is presumed that the witness was acquainted with the testator, though the fact is not distinctly stated.
It is more doubtful how this precise question would be decided in the courts of Massachusetts. In Needham v. Ide (5 Pick., 510), an instruction to the jury in a probate case, by MORTON, J., to the effect that the attesting witnesses might lawfully give their opinions as to the testator's sanity, "but that mereopinions of other witnesses were not competent evidence and were not entitled to any weight further than they were supported by the facts and circumstances proved on the trial," was approved by the supreme judicial court. (Dickinson v. Barber, 9 Mass., 225; Poole v. Richardson, 3 id., 330.) The preponderance of authority in this country is without doubt largely in favor of the admission of the evidence in question; and considering the case exceptional in its character we are of opinion that it was correctly received. If a rule could be framed which should confine the evidence of opinions in this class of cases to witnesses who were well informed, judicious and discriminating, and whose opportunities of observing the mental operations of the individual whose competency was in question were ample, and who were moreover free from bias, no one would seriously object to the doctrine admitting it to be given. But a rule so limited would be obviously impracticable from the number of collateral issues which it would involve. There are, however, certain qualifications which are indispensible. In the first place the witness whose opinion is *Page 397 received should be one acquainted with the person of whom he is to speak, and should have heard him converse and have observed his conduct generally or in respect to some particular transaction, and the opinions should be such as the witness has formed from his own observation and not from information otherwise derived; and in the next place, if his opinion is unfavorable to the competency of the party, he should relate so far as he is able the facts upon which it is based. With these necessary limitations we think such evidence should be received, and that its weight may be safely left to the discretion of the jury.
There is no ground for saying that opinions not grounded upon facts were admitted in this case. Both the witnesses whose opinions were objected to were well acquainted with the grantor, and related facts more or less cogent bearing upon the opinions which they gave.
There was no error in receiving evidence of the declarations of Mrs. Dewitt, made in the presence and hearing of her husband, imputing to him a total want of recollection, to which he made no reply. The hearing of and not denying such allegations was a feature in the conduct of the grantee very proper for the consideration of the jury.
The conveyance was executed in June, 1849; and a witness was allowed to speak of conversations had with him in the following April, and to answer the question whether he was then capable of managing his affairs. This was correct; for though the point in controversy was his capacity when the deed was made, the evidence tended to strengthen to some extent the conclusion that he was incompetent at the prior period. (Freeman v. The People, 4Denio, 9, 40.)
The motion for a nonsuit was properly overruled. It had been proved that Mr. Dewitt appeared to be without memory or judgment; and although the witnesses may have over-stated the case against him, there was enough in my opinion to carry the question to the jury. No exception was taken to the instructions which were ultimately given *Page 398 to the jury, and the question whether their verdict was supported by the whole testimony is not before the court.
The judgment must be affirmed.
WILLARD and MORSE, Js., also read dissenting opinions.
Judgment reversed.