The opinion of a majority of the Court was drawn up by
Shepley, C. J.The principal issue on this part of the ease presented for decision by the jury was, whether the conveyances from the respondent were fraudulently obtained. To show this, there must be proof of acts or representations of the grantees or of their agents; and that these were deceptive or false; and that they were at the time known to be so.
Testimony tending to prove that William B. Larrabee before, and at the time of executing his will was insane, could have no tendency to prove the alleged fraud, unless the facts exhibiting sueh insanity were known to the grantees or their agents. Testimony tending to prove facts exhibiting unsoundness of mind, which facts were not known by the grantees or-their agents, could be suited only to mislead the jury, and thereby to operate unjustly. Whether the testator was of unbound mind, as an independent fact, could not properly or justly be presented to the jury for consideration and decision. If he was in fact insane, and that was not known to the grantees or their agents, testimony to prove that fact could have no legitimate influence upon a decision *484of the question presented, whether the conveyances were fraudulently obtained. If there had been testimony offered having a tendency only to prove, that the facts or any of them, offered to be proved to exhibit unsoundness of mind, were known to either of the grantees or their agents, the testimony offered to prove insanity, and excluded, should have been admitted ; and the jury should have been permitted to decide, whether the grantees had knowledge of those facts. If on the contrary, there was no testimony tending to prove, that the facts so offered to be proved, or any of them were known to either of the grantees or their agents, the testimony offered to prove insanity could not have been legally or justly admitted.
The Court cannot come to a conclusion, that the tetimony offered to prove insanity was erroneously excluded, unless there be found some testimony reported in the bill of exceptions, or found in the depositions named therein, tending to prove, that the facts stated in the testimony to prove insanity, or some of them, were known to the grantees or their agents. No such testimony appears to have been reported in the bill of exceptions; and none has been noticed in the testimony excluded. Nor has any been pointed out in the argumenté presented. The facts offered to be proved to exhibit insanity, and which were excluded, were not of a character to be publicly known ; and there is no testimony tending to prove an intimacy between the families of the grantees and that of the testator. Ammi R. Mitchell on his examination in chief states, that the testator “ was considered in such a state of mind that for a spell he was watched,” and that “ he got away from his watch one time and there was quite a time in hunting him up.” On cross-examination he was asked to state his means of knowledge and he stated “ it was from general conversation about the town,” and that “it was about thirty years ago.” This testimony was clearly inadmissible as resting upon mere rumor or town talk.
Testimony to prove the facts exhibited by the testimony received in the Court of Probate should be received in this *485Court, for it would exhibit the knowledge of one of the grantees of those facts before the conveyances were made. But the whole of the testimony received in the Court of Probate, respecting any fact, or state of facts, should be presented in this Court to authorize its reception here. Otherwise the respondent might present the account or statement of a fact tending to prove insanity, and omit to have the accompanying circumstances stated, and thereby present to the jury in this Court an entirely erroneous, if not false account of the aspect of the case as it was exhibited in the Court of Probate and known to that grantee.
By the application of these rules it will not be difficult to determine, whether any testimony was erroneously excluded.
It appears from the bill of exceptions, that portions of the depositions of Israel Putnam, John Low and Abigail Low, “ which are objected to, being such parts as relate to the insanity of William B. Larrabee” were excluded. The portions excluded might have been more clearly designated, but it is believed, that they can be satisfactorily ascertained. These witnesses did not testify in the Court of Probate, and there is no testimony tending to prove, that the facts, or any of them stated in their depositions, and which were excluded, were known by either of the grantees, or by any agent of theirs before the conveyances were made ; and the portions excluded could not have been received without a violation of legal rules, and without their operating to produce injustice.
Ammi R. Mitchell was a witness to the execution of the will, and he testified in the Court of Probate, and the facts which by his testimony were exhibited in that Court, were admissible as testimony in this Court, if presented in such a manner as to be legally receivable. Most of his testimony respecting the insanity of the testator, contained in his deposition, appears to have been received. The greater part of it was presented by the cross-examination, and it was received without objection.
The only portions of his deposition, which were excluded, or appear to have been excluded, were the questions and answers contained in the fifth and sixth direct interrogatories.
*486The fifth interrogatory is in these words : — “ Did you or not testify, that in your opinion said Larrabee was not sane at the time of making his will” ? This question had reference to his testimony in the Court of Probate, and it was an appropriate one, and it should have been received if the answer had been of a like character. The answer was — “I did testify, that he was not sane in my opinion on some subjects.” He does not state what those subjects were. If this testimony had been received it is very obvious, that it would not have presented his testimony in this Court, as it was presented in the Court of Probate. The subjects named in the latter Court, upon which in the opinion of the witness he was not sane, might have been such as to exhibit the absurdity of the opinion of the witness. To have admitted this testimony, would have been to receive that part of his testimony unfavorable to the sanity of the testator unaccompanied by that part which was favorable.
The sixth interrogatory asks the “ purport” of a written paper not produced, and which the witness concluded exhibited indications of insanity. The answer is in substance, that he could not “ form an opinion as to what it meant at the time.” Comment is useless.
A. C. Raymond testified in the Court of Probate and the facts, to which he there testified, accompanied by all the explanatory circumstances there exhibited, would be admissible in this Court. He states many facts in his deposition tending to prove the testator to have been insane within a short period before his will was executed ; and this testimony would have been most material to prove the alleged fraud, if it had come to the knowledge of the grantees in the manner in which it is stated in the deposition. But such does not appear to have been the fact. The witness having stated that he had testified in the Court of Probate, is then asked, whether he “ did or not give the same testimony there, that you have now given in this deposition ?”
The answer is, “ I did so far as respects the muses, and so far as I was questioned.”
*487It is obvious that this answer leaves it entirely uncertain, what portions of the testimony in the deposition were presented in the Court of Probate, with the exception of “so far as it respects the muses.” What portion of his deposition he referred to “as respects the muses,” is left too uncertainly designated to be admissible.
The Judge of the Probate Court, Mr. Groton, does not state in his deposition any fact as of his own knowledge, tending to prove that the testator was insane. The complaint is as stated in the bill of exceptions, “ that part of Judge Groton’s testimony in which he gives an account of the evidence given before him at the trial on the will,” was excluded. So far as he stated what any witness before him testified, it was not excluded. So far as he stated what he considered to be the substance or effect of the testimony of any witness, or in the words of the exceptions, so far as “ he gives an account of the evidence given before him,” it was excluded ; and it was clearly inadmissible. ,.
No error is perceived in the instructions which appear to have been appropriate.
The requested instructions so far as they were not embraced, in the instructions given, were properly refused. The exceptions are overruled, and the motion to set aside the verdict and the petition for a new trial must be denied.