Appeal, from a decree of the probate court approving and allowing the will of Jeremiah White, on the grounds (1) that the testator was not of sound mind when he executed the will, and (2) that he was induced to execute the same by undue influence, over-persuasion, and artful misrepresentation on the part of his wife, Ann M. White, her children, and others interested therein. Trial by jury. The testator died at Nashua, July 22, 1892, at the age of seventy-one years.
Good law ✅— No negative treatment on recordhow we know
Decided 1898-06-05
How this case has been cited
Cited by 16 later decisions — most recently December 1944
16 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
¶1
Whether the photographs were sufficiently identified was a question of fact, the determination of which at the trial term is not open to exception.
Blair
v.
Pelham,
118 Mass. 420. The material question being whether the photographs were truthful representations of the subjects at the time of the alleged undue influence, no reason appears why evidence from personal acquaintances might not satisfactorily establish the fact. When in point of time the photographs were taken might also be evidence upon this question, but such evidence would not be conclusive and is not essential.
¶2
The other exceptions to the rulings admitting and excluding evidence present no question of law. Whether the evidence offered — the former will of the testator, the net earnings of the Freezer Company after the death of the testator, and the unsigned letter of instruction addressed to the executrix, found after the testator’s death in the envelope containing the will in question — had or had not any legitimate bearing of the character claimed upon the issues submitted to the jury, were questions of fact determinable at the trial term. The exclusion of evidence on the ground of remoteness which may properly be excluded on that ground is not error. Neither does an exception lie on this ground to evidence admitted.
Beekman
v.
Souther,
68 N. H. 381;
Hart
v.
Lockwood,
66 N. H. 541;
Morrill
v.
Warner,
66 N. H. 572;
Cook
v.
New Durham,
64 N. H. 419;
Darling
v.
Westmoreland,
52 N. H. 401,
411; Haines
v.
Insurance Co.,
52 N. H. 467;
Hovey
v.
Grant,
52 N. H. 569;
Palmer
v.
Concord,
48 N. H. 211, 219;
State
v.
Railroad,
58 N. H. 410.
¶3
The objectionable remark of counsel having been withdrawn by him, as it appears by an affirmative finding of the court that the jury were not influenced thereby, the exception must be overruled.
Furnald
v.
Burbank,
67 N. H. 595.
¶4
Whether any evidence was offered upon which the jury might properly have found for the appellants upon the issue of undue influence cannot be determined from the reserved case. Counsel have not called our attention to any portion of the evidence, or submitted any minutes of the testimony. The exception to the verdict ordered for the appellee upon this issue must therefore be regarded as -waived.
Tabor
v.
Judd,
62 N. H. 288, 293;
Lobdell
v.
Marshall,
58 N. H. 342; P. S.,
c.
204,
s.
14.
