William Linnehan died on February 12, 1924. An instrument, purporting to be his will executed on July 1, 1922, was offered for probate. The issue of his soundness of mind at the time of the execution of this instrument was submitted to a jury in the Superior Court, who found for the will. The record states that the proponent called certain witnesses, upon whose testimony the jury would be warranted in finding that the testator was of sound mind.
It appeared that a will of the testator was executed on April 6, 1923. The contestants offered the final decree of the Probate Court dated November 3, 1925, by which the will of April 6, 1923, was disallowed on the verdict of the jury which answered in the negative the issue “Was said William Linnehan of sound mind at the time of the execution of the instrument dated April 6, A.D. 1923, which is propounded as his last will?” This evidence was excluded and the contestants excepted.
The decree of the Probate Court disallowing the alleged will dated April 6, 1923, even if admissible on any ground, might properly be excluded in the exercise of a sound discretion for the reason that it had no tendency to show that when the testator executed the will in controversy on July 1, 1922, he was of unsound mind. See Sewall v. Robbins, 139 Mass. 164; Boston Safe Deposit & Trust Co. v. Bacon, 229 Mass. 585, 589.
The contestants rely on Clifford v. Taylor, 204 Mass. 358, 359. In that case evidence of the appointment of a conservator of the testatrix was admitted, and the judge charged the jury that the appointment was evidence for the jury to take into account as bearing upon the question of the probable state of the testatrix’s mind “from that time on.” This court held that the instruction given was correct. It was said by Khowlton, C.J., at page 360: “The judicial determination of the facts that must be proved, under the statute, before a conservator can be appointed, and the status of the person whose property is held by a conservator, are some
The contestants also excepted because they were not allowed to show that a physician, who examined the testator in December, 1923, was requested to examine him by an attorney whose interest it was to show that the testator was then sane. The physician was allowed to testify to the testator’s condition and said that he was then of unsound mind. We understand that this examination was made with reference to the will executed April 6, 1923. The evidence offered was excluded properly. The purpose or motive of another person in seeking to show that a testator was of sound mind in order to establish the validity of another instrument was not admissible, and could not be used to the prejudice of the proponent who was seeking to establish the will executed on July 1, 1922.
Exceptions overruled.