Wright v. City of Boston

Morton, J.

The question whether the plaintiff had his domicil or home in Boston on May 1, 1876, was a question of fact to be determined by the jury under proper instructions. It *164 involved an inquiry as to the acts of the plaintiff and the intention with which such acts were done. His testimony as to his intention was not conclusive. So much of the evidence as is reported shows acts of the plaintiff which have a strong tendency to prove that he had established his home in Boston before May 1, 1876. It was for the jury to determine, upon all the evidence, what was the intention of the plaintiff. The court therefore properly refused the request to direct a verdict for the plaintiff.

The other exceptions relate to the exclusion of certain evidence offered by the plaintiff.

It is a general rule of evidence, applicable in cases of this character as well as in others, that the declarations of a party are not admissible in his own favor. Such declarations are not made under oath, and are mere hearsay evidence. There is an established qualification of this rule, that, where an act of the party is admissible in evidence, any declaration accompanying and giving character to the act is competent. This is upon the ground that the declaration is a part of the act, or in other words is a part of the res gestee. But such declarations are only admissible when the acts of which they are a part are competent. Lund v. Tyngslorough, 9 Cush. 36 . Salem v. Lynn, 13 Met. 544 . Cole v. Cheshire, 1 Gray, 441 . Monson v. Palmer, 8 Allen, 551 . Kilburn v. Bennett, 3 Met. 199 . Thorndike v. Boston, 1 Met. 242 .

Applying these principles to the case at bar, we are of opinion that the evidence offered by the plaintiff was rightly excluded.

The declarations contained in his letter of May 3, 1876, to the assessors of Boston, were not admissible. They were mere declarations in his own favor, not accompanying any act which was admissible in evidence.

The same is true of the declarations in the deeds made by the plaintiff, in which he described himself as “ of Nahant.” The deeds did not relate to any transaction which was material or admissible in evidence, and the declarations therein were therefore incompetent. One of the deeds was to the city of Boston, but the same rule applies to it. The acceptance of a deed by a grantee is slight evidence that the description of his residence therein is correct. He is presumed to know his own residence, and to have an interest in having it correcth stated. But a grantee *165 cannot be presumed to know the residence of the grantor, and his acceptance of the deed, therefore, cannot be held to be an implied admission that the grantor’s residence is correctly stated.

The description by the plaintiff of himself as “ of Eahant,” in his will executed in August 1874, was for the same reasons inadmissible. It was merely his declaration in a transaction which was immaterial and incompetent.

The plaintiff relies upon the case of Wilson v. Terry, 9 Allen, 214 . That case is not very fully reported, but it is evident that the court did not intend to overrule the cases previously decided, which we have cited above. The declarations of the defendant’s testator, which were held to be admissible, were in regard to the occupation of his farm and to the subject of voting; and, upon referring to the original bill of exceptions, it appears that most, if not all of them, were made at the time when he removed to Freetown. That the fact was assumed to be so is evident from the court’s citing with approval the cases of Thorndike v. Boston, Kilburn v. Bennett, and Salem v. Lynn , above referred to, in all of which the doctrine is clearly recognized that a party cannot give in evidence his own declarations in his favor unless they accompany some act which is itself competent evidence, and are thus part of the res gestae. It is clear that the court considered that these declarations fell within this rule.

In regard to the decision in that case, admitting the will of the defendant’s testator, we are unable to see how it can be upheld, consistently with the previous decisions. This decision was apparently made upon the authority of Ward v. Oxford, 8 Pick. 476 . In that case, the question was as to the settlement of a pauper, who, it was claimed, derived his settlement through his father from his grandfather. It was held that, as evidence tending to show that the settlement of the grandfather was in Oxford, office copies of a deed and a will made by the grandfather more than seventy years before the trial, in which he described himself as “ now resident in Oxford,” were admissible. The declarations admitted were not the declarations of a party to the controversy. Though such evidence may be competent in proof of an ancient transaction, in regard to which, as in ques tians of pedigree, the rule against hearsay evidence is relaxed, the case cannot be regarded as an authority to the point that the *166 recitals in a recent deed or will are competent evidence in favor of the party making them, in a suit against him or his executor.

The case of Wilson v. Terry differs from the case at bar in the fact that the testator whose will was admitted had died, leaving the will unrevoked. But we are not able to see how this fact furnishes a valid ground for any distinction in principle. Upon an examination of the adjudications in this Commonwealth, we are brought to the conclusion that this case, at least so far as regards the admission of the will, is in conflict with the current of the authorities. As observed by Mr. Justice Metcalf, in Capen v. Barrows, 1 Gray, 376 , 380, “an occasional wrong application of a principle is not a strange thing in jurisprudence; nor does it weaken either the principle itself, or the obligation of courts to adhere to it.”

We are therefore of opinion, that the chief justice rightly rejected the will and the several deeds offered by the plaintiff at the trial.

The only other exception which the plaintiff insists upon is that to the exclusion of the will of his father in which he describes himself as “ of Nahant.” It is a sufficient reason for the rejection of this evidence, without considering others, that the residence of the father was not involved in the issue on trial, and was an immaterial fact.

Judgment on the verdict.