Since the existence of the provision contained in Gen. Sts. c. 113, § 10, the decree of a judge on the subject of framing issues to a jury is subject to the right of appeal, but it has never been subject to exception. Stockbridge Iron Co. v. Hudson Iron Co. 102 Mass. 45. Wright v. Wright, 13 Allen, 207. We have no power, therefore, to revise the rulings of the judge on this point.
It appears that Samuel Brooks, Senior, who was the owner of the real estate in controversy, made a deed to the defendant Thomas F. Tarbell, to hold in trust for the support of the grantor during his life; then for the support of Phelps Brooks and his wife during their lives, and at their decease to convey the land to the heirs of Phelps Brooks in fee simple. Samuel Brooks, Senior, and Phelps Brooks and his wife, have deceased, and the plaintiffs, who are tne children and heirs of Phelps Brooks, bring this bill to compel Tarbell to convey the premises to them, according to the terms of the trust. There are several other de« *500fendants, some of whom are the heirs of Samuel Brooks, Senior and others of whom hold under them, and make claim to their several proportions of the property on the ground that he was not of sound mind when he made the deed to Tarbell, and that Phelps Brooks procured him to make it by fraud and undue influence.
Abner Brooks, one of the defendants, after the decease of his father brought an action against Tarbell to recover one undivided fourth part of the land, claiming title as one of the heirs of Samuel Brooks, Senior, and recovered judgment on the default of Tarbell. The plaintiffs allege that Tarbell fraudulently suffered this judgment to be recovered. Samuel Brooks, Junior, and others recovered a similar judgment against him ; and among the issues to the jury in the present suit was the question whether these judgments were recovered in good faith and without collusion. Tarbell was admitted as a witness on this issue, to testify to facts tending to prove the incompetendy of Samuel Brooks, Senior, to make the deed to him, and the conduct of Phelps Brooks in procuring the execution of the deed. The plaintiffs allege that he was not a competent witness, as Samuel Brooks, Senior, is deceased. But as Tarbell is a mere trustee, he is made a competent witness by the St. of 1864, c. 304, § 1. This case is not like that of Ela v. Edwards, 97 Mass. 318, in which the party, though an executor, was held incompetent to testify as to his own private dealings with his testatrix in her lifetime, not relating to his trust. Nor is it like the case of Strata v. Greene, 14 Allen, 206, in which the witness had not acted in a representative capacity, nor was he called to testify to anything of that kind. In this case, it was not contended that Tarbell was connected with the estate otherwise than as trustee. If he was chargeable with any fraud, or any omission or violation of duty, it was merely in this capacity.
A further objection was made, to the admissibility of his testimony. But as the question in issue was, whether, in suffering default, he acted in good faith, it was proper to prove that he acted under the advice of able counsel, and that the case was rightly understood by his counsel. Robinson v. Wadsworth, *5018 Met. 67. The fact that his counsel, Farley, took pains to have an interview with Phelps Brooks in respect to the transaction, and the. admission’s made by Brooks as to what he had done, and the influences under which his father had made the deed, were pertinent and admissible on this point.
The testimony of Russell as to the efforts of Phelps Brooks to procure the deed, and as to what took place in the presence of Samuel Brooks, Senior, was pertinent to the same issue, and admissible. Somes v. Skinner, 16 Mass. 348. Winchester v. Charter, 97 Mass. 140 Exceptions overruled.