Hale v. Wyatt
Supreme Court of New Hampshire
Probate Appeal, from a decree disallowing a will of Horatio N. March, and allowing an earlier will. The jury found that the later will was executed with the formalities required by law, but that the testator was not of sound mind when he executed it. Prior to the making of the later will, the appellant, Hale, presented a petition to the probate court, setting forth that March was insane, and praying for an inquisition.
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Probate Appeal, from a decree disallowing a will of Horatio N. March, and allowing an earlier will. The jury found that the later will was executed with the formalities required by law, but that the testator was not of sound mind when he executed it. Prior to the making of the later will, the appellant, Hale, presented a petition to the probate court, setting forth that March was insane, and praying for an inquisition. At that time Hale stated to the judge of probate that March was insane. At the trial of the appeal, the executor called the judge of probate as a witness, who, without…
1Opinion of the CourtPlummer, J.
The appellants’ exception is directed solely to the competency of the witness and not to the testimony.
Their contention, that it was incompetent for the judge of probate to give in testimony a statement made by the appellant, Hale, to him in open court, relating to the insanity of the testator, and that the testimony could not be received, although given without objection, cannot be sustained.
There is a great deal of discussion in the books as to whether a judge can testify in a tri^l over which he is presiding, but the better rule would seem to be that he cannot, unless the evidence given is…
2Cases cited4 opinions
- Rogers v. StateSupreme Court of Arkansas · 1894
- Maitland v. ZangaWashington Supreme Court · 1896
- State v. DuffySupreme Court of Connecticut · 1889
- Welcome v. BatchelderSupreme Judicial Court of Maine · 1843
3Cited by12 opinions
- In Re Murchison.Supreme Court of the United States · 1955
- State v. SimpsonSupreme Court of North Carolina · 1985
- Billy Joe Tyler v. Harold R. Swenson, Warden, Missouri State PenitentiaryCourt of Appeals for the Eighth Circuit · 1970
- In Re Grand Jury Proceedings, Subpoenas Duces Tecum "A", "B", "C", "D", and "E", and Subpoenas of Helen Sills and Nancy Doyle. Appeal of Henry J. Cianfrani, Intervenor in 77-1970, 77-2051/2/3. Appeal of Thomas J. Kalman, in No. 77-1971Court of Appeals for the Third Circuit · 1977
- Gelinas v. Metropolitan Property & Liability InsuranceSupreme Court of New Hampshire · 1988
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