To show that the will was unreasonable in its provisions for the appellant, who was the son and sole heir of the testator, as one ground for inferring unsoundness of mind, the appellant testified that he had been partner with his father in the firm of Varney & Harvey, and that his share, upon closing up that firm, amounting to $33,000 or $34,000, had been transferred by him to his father for the purpose of facilitating the settlement of the partnership affairs, with the understanding and assurance that all his father’s estate would become his upon his father’s decease. He also testified that the fact and amount of his interest had been established in a suit in equity, by the report of a master, to whom the case had been referred by the court; and that the final settlement of the partnership affairs had been made in accordance with that report. The appellant then offered in evidence “ a duly certified copy of the record of that case, with the report of the master in chancery.” The exclusion of this record forms the ground of the first exception.
The reasons for its admission, now urged upon the court, are 1st. “ Because it contained the answer of the testator, which did set forth that the appellant was a partner in said firm, and was entitled to a portion of the profits.” But the relations of the testator and the appellant, as co-defendants in the suit, were not such as to make the answer competent evidence in favor of one against the other, as matter of pleading merely. As an admission in writing, the original and not the copy of record was the proper means of proof. Beyond that, the offer of the record was general, as of a record of adjudication; and did not indicate the special ground upon which it is now claimed to be competent, 2d. “ Because it showed a conclusive determination of the rights of the testator and the appellant under the copartnership, and *249the interest of each in the assets of the copartnership.” 8d. “ Because it was a final adjudication, conclusive upon both the testator and the appellant, and was the best evidence known to the law.”
The record is not made a part of the bill of exceptions, nor referred to. We can know its character only by the statements in regard to it in the exceptions themselves. From these we think it is to be inferred that the suit in equity did not proceed to final judgment, but was settled by the parties upon the basis of the report of the master without further adjudication thereon. If so, the record would not be competent to establish the amount of the appellant’s interest. The master’s report is not evidence as an adjudication between the parties until it has been accepted, and judgment rendered upon it.
It might have been competent for the court to have admitted the master’s report in connection with the testimony of the appellant that the settlement was made in accordance with it, as aiding in showing more definitely the amount actually received by the testator on account of the appellant’s share ; but whether the circumstances were such as to make it properly admissible for that purpose, is a matter to be determined very much in the discretion of the judge at the trial. It not being competent as independent evidence, we cannot see upon the exceptions that there was any error in excluding it for the purpose suggested.
It might perhaps be reasonably inferred that the interlocutory decree, by which the case was referred to a master to state the account, did adjudge the appellant to be a partner; though such is not the necessary inference.
To this, as well as to the whole offer of the record, it is answered by the executor that neither the fact that the appellant was a partner, nor the amount of his interest, nominally, was at all in controversy. And, upon examining the entire bill of exceptions, it appears to us that this position is sustained. Not only did the appellant put in evidence an instrument transferring to the testator his interest as a partner in the firm, but another instrument of like import of a later date was put in evidence on the part of the executors. The controversy appears to have been entirely in regard to the time and purpose of the transfer, and not at all as to the existence of the partnership relation.
*250Upon the whole we are satisfied, from these various considera» tians, that the appellant has shown no sufficient and reasonable ground of exception to the ruling by which the offer of the copy of record, as made by him, was excluded.
The appellant also alleges exceptions to the introduction by the executors of the second instrument of transfer, above referred to, and to the inquiries put to Mr. Hutchins, who prepared the instrument, in regard to it. As to the instrument, we think it was clearly admissible. The appellant had introduced one of similar import of an earlier date, and testified in regard to the circumstances and purpose of its preparation, and the inducements under which he executed it; connecting Mr. Hutchins therewith. The testimony of Mr. Hutchins tended to show that whatever transfer had been made was effected by the second and later instrument. If it was of any consequence whether it was effected by one rather than the other, the executors were entitled to show that it was by the later one, and to introduce the instrument by which such a transfer appeared to have been made at the later date.
It was competent for the witness, who testified that he arranged the whole matter for the two parties and prepared and procured the execution of the instrument, to testify further that at the time of its execution no such consideration or understanding, as the appellant had sworn to, was mentioned in regard to it. It was a question for the jury to determine whether this or the paper of earlier date was the real instrument of transfer, and to apply the evidence accordingly.
The inquiry of this witness, in regard to the circumstances attending the execution of the paper dated February 19, 1870, and why it was executed, was properly allowed to be put. It was an open question whether the second assignment was not the real instrument by which the transfer was effected, of which the appellant testified. If it was, the answer might contradict or explain that testimony. It might also have a tendency to connect the transactions of which the appellant had testified with those testified to by Hutchins, and with the second assignment. If Mr. Hutchins made the whole arrangement between and for the parties, as he testified, he might fairly be supposed to be able properly to answer the question “ why it was executed.” It was *251in reply to the account which the appellant had given of whai might be found to be the same transaction.
The objection and the exception are limited to the inquiry. The statements, which the witness proceeded to make in answering the inquiry, are objectionable in form, and some of them in substance. They might have justified the court in interfering, ol its own motion. But it does not appear that the party made any objection to the mode of answering, and no request was made to the court to strike out any part of the answers, either as not responsive, or as improper in form or substance. It is not for us now to consider objections that might have been made at the trial, but were not made.
The last remark applies also to the objection, now made, that the relation of Mr. Hutchins to the parties was that of attorney and client; and that his testimony was a breach of the privileges of that relation. That the objections to his testimony could not have been based upon that ground, at the trial, is manifest from the reason assigned by the court for considering his testimony competent in another aspect; to wit, that “ the witness was counsel in litigation in which the deceased and the appellant were more or less concerned,” and “ the paper was drawn up at his office and under his direction.” Whether communications, of which a witness is asked to testify, are privileged, depends upon various considerations of fact, to be first investigated by the judge who is called upon to rule; and his finding upon those facts may be such as to make his ruling upon the point conclusive. In this case, the point not having been presented at the trial, there is no proper finding of the facts upon which it can be decided, and, in reality, no ruling upon the point to be revised ; and it cannot be considered as involved in the ruling permitting the witness to testify.
Objection is made to the testimony of the witness Beal, who had conversations with the testator, and who was allowed to state that at the last interview before the date of the will, he “ observed no incoherence of thought in the testator, nor anything unusual or singular in respect to his mental condition.” We do not understand this to be the giving of an opinion as to the condition of the mind itself, but only of its manifestations in conversation .with the witness. So far as his mental condition was *252manifested to the witness by that interview, in conversation, looks or demeanor, he could properly state, as a matter of observation, whether it was in the usual and natural manner of the testator or otherwise. “ Incoherence of thought ” has reference to the ideas expressed or conveyed to the hearer, rather than to the condition of the mind of the speaker. There is no essential difference between these answers and those allowed in Barker v. Oomins, 110 Mass. 477. The other objections to the testimony of Beal touch its effect and not its competency.
The witness called by the executors as an expert to prove the soundness of the mind of the testator at the date of the will, admitted that he had no knowledge of the effect of Bright’s disease of the kidneys upon the mind. He was admitted to be an expert in mental diseases. From the numerous hypothetical facts included in the question put to him he might be able to pronounce with certainty that the person of whom those facts were true must have been sane, whatever influence might be attributed or expected ordinarily to follow from the disease of which the testator died within less than a month from the date of the will. The effect of his answer was not an opinion as to the influence of Bright’s disease upon the mental condition, but merely that the other facts assumed in the question, if true, would show conclusively that the testator was sane at the time of which they were predicated. If there was thought to be danger of any misapprehension as to the bearing of his testimony upon the effect of Bright’s disease, from including that among the facts assumed in the question, a little cross-examination would have corrected the difficulty. The testimony was not rendered incompetent because the inquiry included one fact from which the witness professed to be able to draw no inference.
An objection is also urged because, after the appellant had introduced his evidence, the executors were allowed not merely to meet that evidence, but also to introduce further affirmative testimony in support of the will; and especially because one who had been previously called as a subscribing witness and had testified not only as to the execution of the will, and the sanity of the testator at that time, but also as to the facts connected with the preparation of the will and interviews with the testator in relation thereto, and “ that he had been the legal adviser of the testatoi *253for many years, and had been consulted fully by him on many important matters,” was allowed to be recalled and examined anew without restriction, upon the points in controversy.
It is perhaps a sufficient answer to this objection, that the order in which the testimony shall be introduced is, in the main, subject to the discretion of the presiding judge, and not a matter of exception. But further, the order followed at the trial of this case is that which is generally found most convenient for the trial of issues of this nature, and is in accordance with well established practice. On the issue of sanity, the burden rests upon those who offer the will for probate. It is to establish the sanity of the testator at the very time when the will was executed. Ordinarily the direct evidence of the subscribing witnesses is sufficient for this purpose in chief, making a primd facie case. It would doubtless be competent to strengthen this direct testimony by the inferences to be drawn from proof of sanity before and after the date of the will, within a limited range of time. But, until the evidence of the contestants is produced, it is difficult to determine the proper limits of that range. Simplicity in presentation of the question, as well as practical convenience in conducting the investigation, favors the order of trial adopted in this case.
The subscribing witness, who wrote the will,, was allowed to add to his negative answer to certain questions, put to him in regard to what he had said about the mental condition of the testator, his reasons for such denial. In one case, “ because I never thought of such a thing as his not being sane; ” in the other, “because it was not true.” So far as the objection to these answers rests upon the point that they were not responsive, or rather, that they went beyond what was requisite for a sufficient and proper answer to the question, it is a matter within the discretion of the presiding justice at the trial. The nature of the inquiries, being intended to discredit the direct testimony of the witness, was such as might make it reasonable that he should be allowed, not merely to negative the particular fact or expression suggested, but to repel the imputation that he had any knowledge or had ever entertained an opinion contrary to what he had testified to. The first answer went no farther than that, and we do not see that it had any bearing as affirm ative evidence which could make *254it open to exception m point of substance. The second, so far aa it had any bearing as affirmative evidence, was competent in itself.
The refusal of the instruction prayed for, on the ground that there was “nothing in the oral evidence which required” it, was proper. Giving to the language of the will its fullest effect, it does not indicate any agreement or promise that Henry Hunt should have an interest in the copartnership of Semonin and Dixon, or be paid any definite share of the profits; but at most only an expectation that in consideration of the provision by which his capital was allowed to remain in the firm, Semonin and Dixon might be disposed to pay to his son some portion of their profits, in addition to interest; it being left wholly to them to do so or not, as it should to them “ seem to be fair and just.” There was not only no evidence that this expectation was encouraged by Semonin and Dixon to influence the provisions of his will, but the communications upon the subject between the testator and Dixon, after the date of the will, and before the execution of the codicil, and the explicit conclusion of the testator to “leave it as it is,” notwithstanding Dixon’s refusal to give any definite promise or distinct assurance upon the subject, show that there was no ground for requiring such an instruction arising from the terms of the will and codicil, and the circumstances of their execution. Exceptions overruled.