209 U.S. Opinion oi th? Court. dence of their truth, but only because he made them, and that is an original fact from which, among others, light is sought to be reflected 6pon the rain issue of testamentary capacity. "It is quite apparent, therefore, that declarations of the deceased are properly received upon the question of a state of mind, whether mentally strong and capable, or weak and incapable, and that from all the testimony, including his dec- larations, his mental capacity can probably be determined with considerable accuracy." And 'see In re Kennedy, 167 N.Y. 163, 176. In Sha//er v. Bumstead, 99 Massachusetts, 123, it was ruled: "Where a foundation is laid by evidence tending to show a previous state of mind, and its continued existence past the time of the execution of the will is attempted to be proved by subsequent conduct and declarations, such declarations are admissible, provided they are significant of a condition suffi- ciently permanent, and are made so near the time as to afford a reasonable inference that such was the state at the time, in question." In the present case no foundation was laid for the admiss?on of this evideqcs. Not a syllable of testimony was adduced by appellants to-show want of testamentary capacity at the date of the will. For aught the record shows, she retained her mental powers up to the time of her death, which took place five years and eight months after making her will. As we have said, appellants did not state what t.hay?.ex- pected to prove by dcce.dcnt's husband, nor what they ex- pected to prove by the evidence of William A. Lipphard. This witness testified on cross-examination that hc did not know his mother had made a will until after her death. In his di- rect examination he stated that she told him, in a conversa- tion had with her a week before she' died, how she had disposed of her property by her will. And so the offer to prove by Albert R. Humphrey, that the testatrix two years .prior to her death, and more than VOL. CCIX--1 lq
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