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7. APPEAL AND ERROR-TRIAL-ARGUMENT.
On a record showing only detached portions of argument to which exception was taken in the trial court, and which the court rebuked, where the record did not disclose whether or not the improper argument was called out by remarks of opposing counsel, prejudicial error was not shown.
Error to Tuscola; Beach, J. Submitted October 25, 1910. (Docket No. 112.) Decided December 22, 1910.
Samuel R. Du Bois and Frank North offered for probate the will of Isaac Du Bois, deceased. From an order of the probate court admitting the instrument to probate, George H. Du Bois and Mary E. Lewis, contestants, appealed to the circuit court. A judgment sustaining the validity of the will is reviewed by contestants on writ of Affirmed.
W. J. Spears, Harry G. Kimball, and Ellwood P. Morey, for appellants.
Frank L. Fales, for appellees.
OSTRANDER, J. The probate court for the county of Tuscola admitted to probate an instrument proposed as the last will and testament of Isaac Du Bois, deceased. The contestants appealed to the circuit court, contending that deceased had not sufficient testamentary capacity to make the will, and that he was unduly influenced by relatives and those surrounding him at the time the will was made. A jury found that the instrument was the last will of the deceased, and contestants ask us to review the proceedings had at the trial. The errors assigned will be considered in the order in which they are presented in the brief for appellants.
1. One of the subscribing witnesses to the will was sworn and examined as a witness. He was asked:
"Q. From what you observed and discerned of Mr. Du Bois at the time he requested you to sign this as an attesting witness, in his presence, this will, did you form any
conclusion as to whether he understood and comprehended the will?
"A. I paid no further attention any more than I would to any other customer that I was waiting on in the bank. "Q. I do not ask you to tell the conclusion, but did you arrive at any conclusion as to whether Mr. Du Bois understood and comprehended this particular will? (An objection was made to this question by counsel for contestants, on the ground that it is not a proper question and on the ground that witness had not laid sufficient foundation, which said objection was overruled by the court. Contestants excepted.)
"A. I should think he fully understood what he was doing.
"Q. From what you observed and discerned, state whether or not the testator, Mr. Du Bois, appeared to be under any restraint or undue influence?
"A. Not to my knowledge."
It will be noticed that the question called for no opinion or conclusion, and could, and should, have been answered by yes or no. Assuming that the objection raises the question which is argued in the brief, namely, that the witness had not testified to such observation of the testator or to such acts or circumstances as entitled him to express an opinion concerning his mental competency, it is still apparent that the answer to the question imported no less and no more than the signature of the same witness to the will imported, which was that so far as appearances were noticed by the witness the testator appeared to understand what he was doing at the time of executing the will which the witness attested.
2. A witness for the contestants had testified that the deceased, in August, 1906, was under his observation, and that he noticed, among other things, that he told long stories. Upon this subject the examination proceeded as follows:
"Q. Can you give us any idea of those stories, what would he say?
"A. All of his early life; talked a great deal of his pony, told us his hunting trips and fishing, and how he lived while in the woods.
"Q. State whether or not the stories were reasonable, connected stories ?"
Counsel for proponents objected upon the ground that the question was leading, and the objection was sustained. The argument which is made for appellants is that a witness may often state a conclusion or give an impression when he is unable to describe appearances. We see nothing in the question which would indicate that the witness was expected to answer the question in a particular way. The question was objectionable as calling for the conclusion of the witness. While this was not the ground of the objection, it appears to have been the ground of the ruling. Later, the witness was denied the privilege of answering the question, "Did they have a point to them?" referring to the stories, and the question, "Were these reasonable stories?" the court saying that those were questions for the jury. Still later, the witness attempted to describe the stories. The ruling of the court was correct, and the jury had the benefit of the description of the stories which the witness gave, and of the testimony tending to prove that the stories were frequently repeated. They also had the benefit of the opinion of other witnesses for contestants who testified, without objection, that decedent told long stories, without point, not reasonable or connected, repeating them without apparent reason.
3. A medical witness, called by the proponents, testified upon direct examination as follows:
"Q. Do people ever die of arterio sclerosis standing by itself, except they have either apoplexy or an attack of the heart?
"A. Not in my experience.
"Q. Do you know of any instance laid down in the authorities, except it is one or the other of the causes named that would immediately precede death?
"A. I do not.
"Q. Are there any authorities, with which you are familiar, that lay it down that death may ensue from that disease, except one or the other of these immediate causes obtain ?
"Q. State whether you know in your own experience, or know of any instance laid down in the authorities, of a person dying of arterio sclerosis or inanition due to that, where the capacity to transact ordinary business is questioned, for a period of two months prior to the death? "A. No, I don't."
On cross-examination, he testified as follows:
"Q. Does that have an effect on the mentality of the patient?
"A. Arterio sclerosis?
"A. I never heard of a case where it did.
"Q. Is Church & Peterson a good work on this?
"A. On what?
"Q. Church & Peterson on Nervous and Mental Diseases?
"A. Supposed to be.
"Q. A standard authority? "A. It is one of them. I don't know how late an edition you have got there; it might have been an authority a number of years ago, and not authority now. It would be well enough to know the edition.
"Q. Church & Peterson, 1903. "A. That is quite recent.
"Q. Is that a good authority on it?
"A. I should say so.
"Q. Do you know whether it has any effect on cerebral activity ?
"A. Well, it will after a while, undoubtedly.
"Q. On page 197 of Church & Peterson it says (reading from book).
"Mr. Wixson: We object to reading from the medical book and substituting the text of some writer for the testimony of the witness, even upon cross-examination. We have no opportunity for redirect examination upon this authority. (Objection sustained. Exception for contestants.)"
It is conceded by counsel for appellants that scientific books cannot be introduced in evidence, but contended that it is competent on cross-examination to base questions upon the contents of them or upon extracts from them, so long as the testimony is rigidly confined to the one pur
pose of testing the competency of the expert, or the value of his opinions. Assuming the rule to be as stated, we are not convinced that counsel was denied the benefit of it. We do not know what counsel proposed to read, or did read. The point is not ruled in appellants' favor by Pinney v. Cahill, 48 Mich. 584 (12 N. W. 862), because the witness had not referred to the medical work as supporting his opinion, or professed any acquaintance with the work beyond its general reputation. We find no reason for refusing to apply the rule of Marshall v. Brown, 50 Mich. 148 (15 N. W. 55).
4. The same witness, on redirect examination, was asked:
"Q. Can you answer now, predicating your answer upon what you saw of him from the 20th of October to the 9th of November including the intervening visits, as to whether from your first visit on October 20th to November 9th the last, he had the capacity to make a will?
"Mr. Kimball: Same objection.
"The Court: The objection is sustained to the latter portion of the question.
"Mr. Wixson: What particular portion, if the court please, if you will direct my attention to it?
"The Court: Under your own objections haven't we confined it to the question of the will in question in this case?
"Mr. Wixson: If the court please, I think the 134th Michigan decided that we are not obliged to confine it to the will in this case. My objections to the testimony of the contestants-perhaps the court and counsel misunderstood one another-was as to the question involving what would constitute legal testamentary capacity. Now, I don't ask the doctor here as to his knowledge-without reference to what may or may not constitute capacityI ask him predicating it solely upon what he observed. upon these several visits. I cite the 134th Michigan, page 51.
"The Court: He may answer.
"Q. Predicating your answer solely upon what you observed of Isaac Du Bois on the occasion of your first visit, the last visit, and the intermediate visits, between those dates, did you, or could you now, have an opinion as