The weekly intelligencer. [volume] (Lexington, Mo.) 1891-1901, 1894-03-10

for defdt, concerning certain statements
and opinions made and expressed by
them, and IN allowing the answer TO
such questions to be received in evi-
dencc, over defendants objections, as
proof of the truth OF the facts stated
in such statements and opinions. The
following questions and answers of
Lock Terhunc will sufficiently illustrate
the point:
q. Did you not say, about two
weeks after the probate of the will, in
front of Trigg's store, in Lexington,
Mo-, TO and IN the presence of Judge
Z. A. Catron, in talking about that
business with Henry, say: '.Henry
had better mind what he is doing;
know enough facts to break that will,"
or words to that effect? A. | did not
say any such words; me and Tom
Catron had Il talk about IT.
q. Did you not say to and in the
presence Of Tom CatrOn, Il short time
after the sale of the personal property,
just near the railroad crossing, in an
swer TO Statement of 4. A. Catron
that the will was very unjust and nm
Christian, say: "And il can be
broken if the facts are gotten all right"
or words TO that effectp A. Not in
those words.
q. Did you not, in the converse
ton with w. NJ. n. Green, in Lexing-
ton, in front of Trigg's store, three or
four days after Mrs. Catron's death,
when Green asked You if she had made
,r,t Al Hhnt 4
stand; they will break it. Henry used
too much influence to have her make
the will the way he wanted it; that
Henry went so far as to say that If his
mother did not make her will to suit
him, that he would commit suicide?"
A. Mr.. Green and | had conversa-
ton, but not in those words. l have a
conversation with him when I 90 to
town, because | am almost sure to
meet him.
With reference to the last question
w. NJ. n. Green, witness for plain
tiff, was asked whether he had heard
Terhune say that or words to that
effect. The witness answered: '.That
was about the purport of what he said"
Lock Terhune and Mary Terhune, as
has been stated, were two of the at
testing witnesses to the will, and had
testified to the testamentary capacity
of the testatrix ut the time of its
execution.
These questions were not with
reference to anything that Henry
Catron had said, or what the witness
had seen him do, but merely as TO the
expressions of the opinions of the wit
nesses as to the provisions of the will,
that it might be broken, had no bear
ing whatever on the issues involved,
and should have been excluded. The
evidence, if il can be called such, was
clearly incompetent, and could have
had no possible effect other than to
mislead the jury and detract their
minds from the legitimate and proper
investigation of the case The state
ments which were sought TO be elected
from Terhune, and which were proven
by the witness, Catron, and other wit
ness, In regard to similar matters,
would not have been admissible il they
could have been proven by direct tes-
timony, rs the mere opinion of a wit
ness is not permissible under such cir
cumstances and with respect to such
matters. ssThe rule that the proof Oi
contradictory statements goes to the
credibility of the witness does not
extend so far as to introduce previous
express opinions of the witness
Thompson on Trials, Vol. 1, See. 493
Com VS.. Money, 10 Mass, 80. In
MOlmes VS.. Anderson, Is Barb, 420
it is held that the rule which allows O
party to impeach witness by showing
he has made statements out of court
inconsistent with what he testiiies to II
court, must not only relate to the
issue, but it must be matter of facI
and not merely former opinion Ol
the witness in relation to the matter il
issue inconsistent with different opin
ion, which the facts testified to by hin
tends to establish.
Nor can witness be interrogate,
not pertinent to the issues involved fo
the purpose of discrediting him. Har
per vs.. II. Il. AZ Mo. 567; Iron Nj. B
VS.. Murdock G2 Mo. 20.
What has been said with reference {,
the cross-examination to Lock Terhun
. applies with like force to that of Mar,
Terhune and Belle Shelby.
The deposition of John Catron
! brother of Mintree Catron, husband o
the testatrix, Martha Catron, was in
, trOduced and read in evidence on be
half of plaintiff, against the objection
of defendant. In his deposition tn
, witness testifies as follows:
q. IT, you had any conversation wit
, your brother Mintree Catron, not lon,
prior to his death, concerning the dis
, position of his property, please stat
, what that conversation was and whe
and where and how it took place? A
Well. about the spring Of 1862 wen
i over to see my brother; he was in fec
/ BILE health at his house; while ! wa
, there we got the news of the Pea Ridg
battle, between the federal and confed
i crate armies; it seemed to excite an
! alarm him very much he told me tina
he was satisfied that the southern con
', federacy would be failure and tha
,, every able-bodied man would be force
i'm the army on both sides and that hi
, SON, Henry, and son-in-law, John Nc
I, Fadin, would be forced to go in tn
army, and that the southern confedel
acy would be lost and that all the prop
erty would be confscated by the feder:
government, and for the purpose {
protecting his property for his childre
he thought it best to will it to his wife
when the war was over she could dl:
tribute it to his children rs he wished
and he had confidence in her that sh
would do so. She was present at I'll
time the statements were made: Il
stated that he did not wish his son-ii
law, John McFadin, to have any of h
property; the reason was that job
McFadin had waylaid the public roa
and made an assault on him to be;
him; he had to wheel his horse aroun
and make haste to Lexington to sa,
himself and got assistance to go hom
lie wanted the property fixed SO tn;
his daughter, Evaiine, and her bodi
heirs could hold it from her HUSBAND
About this time his wife, Martl
Catron, spoSc up and said, that 81
would carry il out according to h
wishes. answered him there that
thought that he was acting wisel
that lie was protecting his childre
and we parted with the understandil
that he would make his will giving h
property TO his wife.
Z. Did you ever ask your broth
after that if he had made his will as