tion with her cottages is of substantial pecuniary value. With some hesitation, we feel bound to decide that the value of a right of access for purposes of prospect is not a sufficient reason to extend her right of way over Centre Avenue. It follows, a fortiori, that the plaintiff has no easement to have the triangle kept open. Moreover, the dotted lines on the plan are not a sufficient indication that it was to be kept open. They divide it from the adjacent ways, and the fact that they are not unbroken, as elsewhere on the plan, at most only raises a doubt as to the intentions of the owner: See Attorney-General v. Whitney, 137 Mass. 450. Whether there are other objections still, we need not consider. It was argued for the plaintiff that the ways and the triangle were dedicated to the public by the making and recording of the plan, and the sale of lots with reference to it. The suggestion is answered, so far as the triangle is concerned, by what we have said already; and as to the ways, at least, those acts were not sufficient to dedicate them in this commonwealth: Pub. Stats., c. 49, sec. 94; Bowers v. Suffolk Mfg. Co., 4 Cush. 332; Morse v. Stocker, 1 Allen, 150; Hayden v. Stone, 112 Mass. 346; Abbott v. Cottage City, 143 Mass. 521, 524; 58 Am. Rep. 143. Furthermore, a dedication to the public alone would confer no private easement on the plaintiff. She would have no private right of action for the public nuisance, unless she suffered private damage, which it is at least doubtful whether the loss caused by these obstructions would be, under our decisions: Hartshorn v. South Reading, 3 Allen, 501; Willard v. Cambridge, 3 Allen, 574; Smith v. Boston, 7 Cush. 254, 255; Brainard v. Connecticut River R. R. Co., 7 Cush. 506, 510; Geer v. Fleming, 110 Mass. 39; Brayton v. Fall River, 113 Mass. 218; 18 Am. Rep. 470; Thayer v. New Bedford R. R. Co., 125 Mass. 253, 257; Breed v. Lynn, 126 Mass. 367, 370. Bill dismissed. Public PUBLIC NUISANCES - RIGHT OF ACTION BY PRIVATE PERSON. nuisances can be abated by a private person only when they obstruct his private right, or interfere at the time with his enjoyment of a right common to many, as the right of passage on a public highway, and he thereby sustains a special injury: Lawton v. Steele, 119 N. Y. 226; 16 Am. St. Rep. 813; note to Jackson v. Kiel, 16 Am. St. Rep. 209. STREETS-MAPS. One who purchases a lot bounded by streets marked upon a map or plat is entitled to a right of way over such streets: Moose v. Carson, 104 N. C. 431; 17 Am. St. Rep. 681. The mere marking of a street upon an unrecorded map does not necessarily constitute a dedication of the street: People v. Reed, 81 Cal. 70; 15 Am. St. Rep. 22 -- LANE V. MOORE. [151 MASSACHUSETTS, 87.] EVIDENCE. DECLARATIONS OF A TESTATOR OR A DONOR are admissible in evidence, not for the purpose of establishing the truth of his statements, but merely to show the condition of his mind; and they are admissible for this latter purpose only when they are sufficiently near in point of time to be of some value in determining his mental condition when he did some act which is assailed for his want of capacity. EVIDENCE. WHETHER DECLARATIONS MADE BY A DONOR OR TESTATOR are sufficiently near in point of time to warrant their being submitted to a jury, as tending to show his mental condition when he did some act which is questioned on the ground of his incapacity, rests chiefly in the discretion of the presiding judge. Generally, his determination of this preliminary question must be accepted as conclusive, where it is not shown that he has misapplied any principle of law. EVIDENCE-DECLARATIONS. Where defendant claimed that a note was given him in the month of August by the holder, who was then nearly eighty-four years of age, and whose business adviser and manager defendant was, it is competent, in an action by an administrator of the donor to recover the note on the ground that it was procured by fraud and undue influence, to prove declarations of the donor, in the months of September and November, after making the alleged gift, inconsistent with his having made the gift, and denouncing defendant as a rascal, where the purpose for which the declarations are claimed to be offered is to show the mental condition of the donor at the time of the alleged gift. ACTION of tort by the administrator of the estate of Nathan Fellows, for the conversion of a promissory note. The intes tate died September 10, 1887, aged eighty-four years and four months. For several years before his death he had not worked at his trade, and from May, 1884, until his death, the defendant acted as his business manager and adviser. The defendant testified that in August, 1884, he loaned his father-in-law, one Todd, five thousand dollars of the intestate's money, with the latter's consent, and took a note, for the conversion of which this action is brought; that the note was renewed five times, and the interest paid by Todd to the defendant, who paid it to the intestate; that on August 7, 1887, the intestate sent for defendant, expressed his belief that he had not long to live, and told defendant that he wished to give him the note, and to carry out this purpose, he wrote his name on the back of the note, and told defendant that he wished him to have it and keep it. The plaintiff's claim was, that no gift had been made, or if made, that it was procured by fraud and undue influence. Among other evidence offered in behalf of plaintiff, and received against defendant's objection, was that of one Ricker, who testified to a conversation held November 4, 1887, with the testator, in which the latter declared that he might as well spend his money as to leave it to be quarreled about; that he wished to spend some of it for curbstones around a cemetery lot, and that he proposed to have his will made; and also the testimony of one Dennison, of a conversation with the intestate in the early part of September, 1887, in which the latter showed a memorandum regarding the Todd note, in defendant's handwriting, and asked witness, "What do you think of that?" and said, "It was a damnable thing; that he could put Moore through for it, and shut him up"; and further declared that he knew nothing about Todd, and nad nothing to show for the five thousand dollars. Plaintiff also testified, against defendant's objection, that in the early part of the same month the intestate said that defendant had let Todd "have some of his money, and he hadn't anything to show for it," and that defendant was a great rascal, and he should hold him accountable. Verdict for plaintiff. Defendant excepted. W. S. Knox and H. F. Hurlburt, for the defendant. C. ALLEN, J. The only question argued is as to the competency of the declarations made by the plaintiff's intestate after the time of the alleged gift to the defendant. Where the mental condition of a person at a particular time is in issue, his appearance, conduct, acts, and declarations, after as well as before the time in question, have been held admissible in evidence if sufficiently near in point of time, and if they appear to have any tendency to show what that mental condition was. The question has usually arisen in cases involving the validity of wills, but the principle is the same where the validity of a gift is questioned, and where responsibility for crime is to be determined: Shailer v. Bumstead, 99 Mass. 112, 122, 123: Lewis v. Mason, 109 Mass. 169; May v. Bradlee, 127 Mass. 414, 420; Potter v. Baldwin, 133 Mass. 427, 429; Whitney v. Wheeler, 116 Mass. 490; Commonwealth v. Pomeroy, 117 Mass. 143, 148; Commonwealth v. Damon, 136 Mass. 441, 448. So where the question was whether a testator by canceling a will intended to revive a former will, it was considered that his subsequent declarations were competent for the purpose of showing what his intention was: Pickens v. Davis, 134 Mass. 252, 257, 258; 45 Am. Rep. 322, and cases there cited. In all such cases, the evidence is received merely for the purpose of throwing light upon the state of mind of the person at the time in question, and not as tending to establish the truth of any facts which may have been stated by him. There are certain proper limitations to the admissibility of such evidence. One is, that the matters testified of should be sufficiently near in point of time, so that the testimony may be of value in determining the question which is directly in issue. Another proper limitation is, that the testimony should appear to have some natural bearing upon the mental condition of the person, or his intention at the particular time which is immediately involved in the issue. It is contended by the defendant that some portion of the testimony which was admitted against his objection failed to conform to the latter of the requirements above mentioned, and that the judge erred in allowing it to go to the jury. Ordinarily, questions of this character must in the first instance be determined by the presiding judge as questions of fact, and if his determination is in favor of admitting the testimony, it then goes to the jury for them to decide as to its weight. For example, the judge will determine whether the time is so remote, or whether the circumstances have so changed, that declarations then made would not be deemed satisfactory evidence tending to show the person's condition at the earlier period. Evidence was excluded for this reason in Davis v. Davis, 123 Mass. 590, 598, and in White v. Graves, 107 Mass. 325. Where, in determining a preliminary question of this description, there is no erroneous application of any principle of law, it is difficult for us, upon a bill of exceptions which merely presents questions of law, to reconsider and reverse the decision. The matter necessarily rests chiefly in the discretion of the presiding judge. Usually, the question is not strictly a legal one. The judge determines, chiefly as a question of fact, whether, under all the circumstances, the testitimony bears a sufficiently close relation to the question in issue to render it proper to be considered by the jury, and ordinarily his determination of this preliminary question must be accepted as conclusive: Shailer v. Bumstead, 99 Mass. 112, 130; Commonwealth v. Coe, 115 Mass. 481, 505; Commonwealth v. Abbott, 130 Mass. 472, 474; Commonwealth v. Robinson, 146 Mass. 571, 580. In the present case, it is impossible to say that the judge has misapplied any rule of law. There was enough evidence of an impairment of the mental faculties of the plaintiff's intestate, before and at the time of the alleged gift to the defendant, to warrant the introduction of evidence as to his condition afterwards. He was almost eighty-four years old. For several years he had not worked at his trade. For over three years the defendant had been his business manager and adviser, and the custodian of his title deeds and bank-books. His conduct in allowing the defendant to manage his property in the manner testified to, and above all, the alleged gift itself, under the circumstances stated by the defendant, would naturally awaken a suspicion that the faculties of the plaintiff's intestate were so far impaired as to make him readily susceptible to influence and pressure. A foundation being thus laid, the plaintiff might properly show his condition afterwards. In order to show this, anything said or done by the plaintiff's intestate, or in his presence, with his conduct or comment thereupon, would, in its nature, be admissible. There was no such lapse of time, or marked change in his condition, as to enable us to say that the evidence should have been excluded. Nor can we say that any of his declarations, as testified to, had no natural bearing upon his previous mental condition. Impairment of mental faculties in particular cases may be indicated by lack of self-control, by undue excitement, by anger, by forgetfulness, or by the use of strong expressions or expressions of astonishment at what has taken place. The fact that such expressions reflected upon the defendant may have been disadvantageous to him in the trial, but it did not render the testimony incompetent. Its weight, of course, was for the jury, who were carefully and more than once instructed that any subsequent statements were not to be considered as tending to prove fraud, or to show that the facts were as stated, but only as bearing upon the state of mind of the plaintiff's intestate. Upon the whole case, we see no error in matter of law. Exceptions overruled. EVIDENCE-DECLARATIONS OF DECEASED PERSONS. As to when the dec larations of a deceased person are admissible to show the state of his mind at the time of making a will, see note to Roberts v. Trawick, 52 Am. Dec. 167-169; Waterman v. Whitney, 11 N. Y. 157; 62 Am. Dec. 71, and note 80, 81; Thompson v. Ish, 99 Mo. 160; 17 Am. St. Rep. 552; Herster v. Herster, 122 Pa. St. 239; 9 Am. St. Rep. 95. AM. ST. REP., VOL. XXI.-28 |