Pritchard v. Austin , 69 N.H. 367 ( 1898 )

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.

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.

The objectionable remark of counsel having been withdrawn by him, as it appears by an affirmative finding of the court that the jury were not influenced thereby, the exception must be overruled.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.

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.

Exceptions overruled.

PIKE, J., did not sit: the others concurred.