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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, EVIDENCK – 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 dofendant 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 intestate 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 defend. ant 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 bis 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 be 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 ?bout; that he wished to spend some of it for curbstones around a cemetery lot, and that he proposed to bave 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 had n't anything to show for it," and that defendant was a great rascal, and be should hold him accountable. Verdict for plaintiff. Defendant excepted.

W. S. Knox and H. F. Hurlburt, for the defendant
E. T. Burley and W. A. Pew, Jr., for the plaintiff.

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 Mags. 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 Mase. 252, 257, 258; 45 Am. Rep. 322, and cases there cited. In all

buch 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 PERSON8. - 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.

AX. ST. REP.. VOL XXL.-28

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Gay V. ROOKE.

(151 MASSACHUSETTS, 118.) PROMISSORY Note XUST CONTAIN ON ITS FACE AN EXPRESS PROMISE to

pay money A mere promise nplied by law, founded on an acknowl.

edgment of indebtedness, is not sufficiente PROMISSORY Note, WHAT IS not. — “IOU, E. A. Gay, the sum of seven.

teen dolls. . for value received," though signed by the writer, is not a

promissory note, but a mere acknowledgment of indebtedness. INTEREST. — In general, where there is a loan without any stipulation to pay

interest, and where one owes money to another, having been guilty of Do wrong in obtaining and no default in retaining it, interest is not chargeable. Therefore interest cannot be collected on an 1 O 0, where there has been no demand for its payment. CONTRACT on a writing which the plaintiff declared on as a promissory note, and which was in words and figures as follows:

" MARLBORO', Sept. 23, 1881. “IOU, E. A. Gay, the sum of seventeen dolls. 1&o, for value received

John R. Rooke." The only subject of contention was, whether plaintiff was entitled to interest from the date of the instrument or from the service of the writ. Upon this subject, the judge ruled against the plaintiff, and the defendant excepted.

H. S. Fay, for the plaintiff.
I. B. Forbes and C. S. Forbes, for the defendant,

DEVENS, J. In order to constitute a good promissory note, there should be an express promise on the face of the instrument to pay the money. A mere promise implied by law, founded on an acknowledged indebtedness, will not be sufficient: Story on Promissory Notes, sec. 14; Brown v. Gilman, 13 Mass. 158. While such promise need not be expressed in any particular form of words, the language used must be such that the written undertaking to pay may fairly be deduced therefrom: Commonwealth Ins. Co. v. Whitney, 1 Met. 21. In this view, the instrument sued on cannot be considered a promissory note. It is an acknowledgment of a debt only, and although from such an acknowledgment a promise to pay may be legally implied, it is an implication from the existence of the debt and not from any promissory language. Something more than this is necessary to establish a written promise to pay money. It was therefore held in Gray v. Bovden, 23 Pick. 282, that a memorandum on the back of a promissory note, in these words, "I acknowledge the within note to be just and

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