made a part of this bill." Referring to the record at the close of the charge, it appears that, after certain exceptions were saved to portions of the charge, the judge said that counsel must then "take any exceptions to your requests that you may wish." Exceptions then were saved to the refusal to give certain specified requests in the Bray Case, but no exceptions were saved to refusals to give requests in the Altman Case. Seemingly no exceptions to the refusals to give requests are open in the Altman Case. There is no merit in any of these requests and we prefer to put the decision on that ground. Ogden v. Aspinwall, 220 Mass. 100, 103, 107 N. E. 448. The first and second requests for rulings thus presented were for a directed verdict. These cannot be considered. That result can be sought only by motion for directed verdict. The third request was to the effect that the plaintiff could not recover on the first count of his declaration, and the fourth request, that he could not recover on the second count of his declaration. Whether a ruling of that nature must be presented by a request for instructions or by a motion for a directed verdict has never been decided. It is provided by rule 44 of the superior court (1923) that:

"The question whether the court should order a verdict must be raised by a motion. Such question shall not be raised by a request for instructions to the jury."

Where several counts rightly are joined in a single declaration, it is common practice to speak of the decision of the jury on each count as their verdict. In such cases, where the issues permit, the verdict may be a general one, covering all the counts; or, where the issues require, there may be a separate verdict on each count. The decision of the jury as to each of such several counts is a verdict. There are many instances in judgments of this court where such decisions by the jury have been called verdicts. The same is true of separate issues submitted to a jury. Lovejoy v. Whitcomb, 174 Mass. 586, 55 N. E. 322; Leverone v. Arancio, 179 Mass.

of case as to the other. Consequently questions of law attempted to be raised in this case by these requests cannot be considered because not presented in conformity to the valid rule of court.

There was evidence tending to show that the plaintiff was employed by the defendant as a broker to find a customer ready, able and willing to buy the property on terms satisfactory to the defendant. There was evidence of a contrary nature to the effect that a commission was to be paid only in the event that the sale was actually carried through. The evidence was sharply conflicting on the point, whether the purchaser procured by the plaintiff Altman was ready and willing to carry out the agreement according to its terms as we have construed it. Perhaps the defendant might reasonably have expected a verdict in her favor on the ground that the purchaser persisted until too late in an erroneous construction of the contract with respect to including the personal property in the second mortgage. The judge gave full and accurate instructions covering particularly this point as well as every other phase of the case. The verdict of the jury upon conflicting testimony has settled these issues in favor of the plaintiff.

It is not necessary to go through the requests for rulings one by one. There was no error in the denial of any of them, on the ground that they were not correct statements of law, or were not relevant to the issues, or that they related to isolated parts of the testimony.

The exceptions to the charge show no error. So far as they relate to the conduct of an attorney for the defendant in his communications with representatives of the plaintiff, they were not incorrect. The charge was fair and left the whole matter to the jury.

There was no error in the charge touching the recovery of reasonable compensation, if the express contract was not proved. While the evidence on the point was tenuous, it cannot be said that there was none to sup

Mass. 47, 51, 73 N. E. 1073; Gorham v. Moor, 197 Mass. 522, 526, 84 Ν. Ε. 436; Dulligan v. Barber Asphalt Paving Co., 201 Mass. 227, 233, 87 N. E. 567; Simmons v. Fish, 210 Mass. 563, 567, 97 Ν. Ε. 102, Ann. Cas. 1912D, 588; Romana v. Boston Elevated Railway, 226 Mass. 532, 536, 116 Ν. Ε. 218.

[10] We are of opinion that the words of said rule 44 comprise cases where a party desires a ruling for a directed verdict as to each of several counts or issues as well as cases where only a ruling directing a general verdict is sought. The grounds of decision in Carp v. Kaplan, 251 Mass. 225, 146 N. E. 779, and in the numerous adjudications

charge was correct in this respect.

[11] The first count in the Altman declaration was founded on a contract for a definite sum for a broker's commission. The second count was for the same sum on an account annexed. There was evidence to support the first count. If that contract was fully performed by the plaintiff, recovery might be had on the second count. If there was no express contract and the plaintiff was entitled to recover the fair value of his services, recovery could be had on the second count. Stuart v. Clark, 259 Mass. 383, 156 N. E. 739.

The verdict was a general one and may be

versation, denial of such motion did not constitute reversible error, since mere fact that counsel for one of parties conversed with one of jury during trial without intending to influence juror's judgment does not require mistrial and discharge of jury.

Exceptions from Superior Court, Middlesex County; Franklin T. Hammond, Judge. Application by Rosanna Claffey and another for the probate of the last will and testament of Patrick C. Fenelon, deceased, contested by Catherine A. Fenelon. On petitioners' exceptions to the verdict of the jury. Exceptions overruled.

P. J. Donaghue and F. T. Conley, both of Boston, for petitioners.

M. G. R. Halloran, of Boston, for respondent.

RUGG, C. J. [1] This case was tried to a jury in the superior court on the issue, "Was Patrick C. Fenelon of sound mind at the time of the execution of the instrument which is propounded as his last will?" This is the issue as answered by the jury and as framed by the probate court. A slightly different and less accurate issue recited in the opening paragraph of the bill of exceptions is controlled by other parts of the record. This is sue was correct in form and in substance. It was in accordance with long established practice in the courts as declared in Fuller v. Sylvia, 240 Mass. 49, 54, 133 N. E. 384, where the customary forms of issues in will cases are set forth. It conformed to the standard of testamentary capacity fixed by G. L. c. 191, § 1. McLoughlin v. Sheehan, 250 Mass. 132, 137, 145 N. E. 259. Nothing that was said in Taylor v. Creeley, 257 Mass. 21, 29, 152 Ν. Ε. 3, was intended to be at variance with this settled usage or to suggest any variation from the issues in use before 1919 "in accordance with the practice established by the Supreme Judicial Court." St. 1919, c. 274, § 7, now G. L. c. 215, § 16.

The instrument offered for probate as the last will and testament of the decedent was executed in March, 1918. He died in December, 1922. By the terms of that instrument the wife, son, and daughter of the decedent were not given anything. Most of his estate was distributed among more or less remote collateral kindred.

[2, 3] The request of the proponents of the will that the jury be directed to answer the question in the affirmative was denied rightly. The burden of proof was upon the proponents of the will to satisfy the jury by a fair preponderance of the evidence that the deceased was of sound mind at the time of the execution of the instrument. In this class of cases, as in the great majority of cases where the burden of proof depends upon the weight to be given to oral testimony, it rarely can be ruled as matter of law that that burden has been sustained. Lockhart v. Ferguson, 243

Mass. 226, 228, 137 N. E. 355; McDonough v. Metropolitan Life Ins. Co., 228 Mass. 450, 452, 453, 117 N. E. 836, and cases there collected; Gold v. Spector, 247 Mass. 110, 141 Ν. Ε. 665. Although there are instances where the facts, in the light of the presumption of sanity, do not raise a disputed question of fact and the court can and ought to rule as matter of law (Johnson v. Jenks, 253 Mass. 25, 147 Ν. Ε. 844; Johnson v. Talbot, 255 Mass. 155, 158, 150 N. E. 900; Taylor v. Creeley, 257 Mass. 21, 152 Ν. Ε. 3), nevertheless these are exceptional and do not affect the general rule.

[4] There was testimony from experts on mental diseases who had examined the decedent during his life on several occasions. On their testimony a finding would have been warranted to the effect that the deceased was so obsessed with certain ideas and had carried them to such excess that they became delusions; that he was suffering from "a paranoid condition"; that he harbored many illusions as to his family, as to the hospital where he was under restraint for a time, and as to the physicians in charge of him; that he was insane; and that the form of insanity from which he suffered was incurable. There was much testimony as to his delusions respecting his wife and family, which need not be narrated. The observations of these experts concerning the decedent ceased between two and three years prior to the execution of the alleged will; but, upon their testimony as to the incurable nature of the mental disorder with which he was afflicted, the inference would be justified that he continued to be in the same or no better mental condition until after the date when the instrument was signed. Requests for instructions numbered 2 to 7, inclusive, to the effect that there was no evidence of his insanity during several specified years, were denied rightly. If this testimony was believed by the jury, a finding would have been warranted that, notwithstanding the presumption of the sanity of the deceased, his mind was not of normal capacity but was tainted by morbid and unnatural defects of a character and magnitude to disable him from appreciating his obligations to his immediate family, and that he was not capable of understanding the relation in which he stood to the natural objects of his bounty and to those who ought to be in his mind, and that he was not free from delusion, which was the effect of disease and which would lead him to dispose of his property otherwise than he would have done if he had had a right appreciation of what he was doing. If findings of this general nature were made, the question put in the issue as framed rightly ought to have been answered in the negative. Whitney v. Twombly, 136 Mass. 145, 147; Becker v. Becker, 238 Mass. 362, 366, 130 N. E. 843; Smith v. Brewster, 247 Mass. 395, 399, 142 Ν. E. 56; McLoughlin v. Sheehan, 250 Mass. 132, 138, 145 N. E. 259. There was much evidence introduced by the proponents tending

to show that the testator was of sound mind. That was not conclusive. Soundness of mind was a question of fact to be determined by the jury upon conflicting testimony. Lockhart v. Ferguson, 243 Mass. 226, 137 N. E. 355; Flynn v. Cunningham, 244 Mass. 306, 138 Ν. Ε. 392.

[5] It appeared from probate records that a guardian was appointed for the decedent on January 5, 1915, on the petition of his wife, daughter and son, on the ground that he was an insane person; that the guardian resigned on May 25, 1916; that on December 4, 1916, this resignation was accepted by the court and it was decreed that the guardian be discharged because the decedent had become and was then competent to manage his estate and the guardianship was no longer necessary; that at the hearing on this petition the wife of the decedent alone was represented by counsel; that an appeal from that de cree taken by his wife was dismissed on January 25, 1917; and that on January 18, 1918, a decree was entered that the decedent was living apart from his wife for justifiable cause by reason of her desertion. See Fenelon v. Fenelon, 244 Mass. 14, 138 N. E. 334. These proceedings were introduced in evidence without objection. The jury were instructed without exception that these matters might be considered as bearing upon the relations between the decedent and his family. The request for instruction that the decree discharging the guardian was "conclusive adjudication" that the decedent was of sound mind at that time was refused rightly. It related to a fragmentary portion of evidence, with which the judge could not be required to deal specifically. Ayers v. Ratshesky, 213 Mass. 589, 593, 101 N. E. 78. Full instructions were given as to the presumption of sanity and as to what constituted unsoundness of mind. Such a decree is conclusive only as to acts which are required to be done by a guardian and cannot be done by a ward. Talbot v. Chamberlain, 149 Mass. 57, 59, 20 N. E. 305, 3 L. R. A. 254. It is conceivable that one under guardianship as an insane person may still have sufficient mental capacity to make a will, and, conversely, one whose guardian has been discharged may not have sufficient capacity to make a will. Stone v. Damon, 12 Mass. 488; Breed v. Pratt, 18 Pick. 115; May v. Bradlee, 127 Mass. 414; Chandler Will Case, 102 Me. 72, 101, 66 A. 215. There is nothing inconsistent with this conclusion in Miller v. Miller, 150 Mass. 111, 22 N. E. 765, Willwerth v. Leonard, 156 Mass. 277, 31 Ν. Ε. 299, and Chase v. Chase, 216 Mass. 394, 103 N. E. 857, upon which the proponents rely.

[6] There was no error in the refusal to give the twenty-first requests of the proponents as to the effect of the presumption of sanity. An accurate definition of that presumption was stated. Ample instructions were given on the point, concluding with the words

that the jury might consider "the will, and the acts and the declarations before the execution of the will, his relations to his family, what he said about them, and they may also take into consideration this presumption [of sanity], and give it such weight as they think it deserves." This was sufficiently favorable to the proponents. The requested modification of the charge, to the effect that the presumption is to be "considered as evidence all the way through," was rightly rejected. Duggan v. Bay State Street Railway, 230 Mass. 370, 378, 119 N. EL. 757, L. R. A. 1918E, 680; Commonwealth v. De Francesco, 248 Mass. 9, 13, 142 Ν. Ε. 749, 34 A. L. R. 937; McLoughlin v. Sheehan, 250 Mass. 132, 137, 145 Ν. Ε. 259. See Clifford v. Taylor, 204 Mass. 358, 90 N. E. 862.

[7] There was no reversible error in the instruction to the effect that the jury might consider whether the attitude of the decedent toward his wife, daughter and son was so unreasonable, irrational and unjustifiable as to indicate that his mind was impaired. This part of the charge plainly had reference to the state of mind of the decedent as manifested by words and conduct concerning which there was considerable testimony. It was not the equivalent of a characterization of the act of giving them nothing under the will and could not have been so understood by the jury.

[8, 9] It is provided by G. L. c. 111, § 70, that a hospital of the class in which the decedent was confined for a time "shall keep records of the treatment of the cases under their care and the medical history of the same," and by G. L. c. 233, § 79, that such records shall be admissible in evidence in court so far as they "relate to the treatment and medical history of such cases." Records of the Boston State Hospital, in which the decedent was confined for several months, were offered in evidence. A general objection was made on the ground that these records were all hearsay and not matters observed by anybody connected with the hospital. An exception of such nature cannot be supported. Record of the treatment and medical history of an inmate of a hospital for mental diseases must of necessity to a considerable extent be descriptive of conduct and conversations reflective of the state of mind of the patient. There was much in the record plainly competent. Raymond v. Flint, 225 Mass. 521, 114 N. E. 811. If there were parts which were thought to be objectionable, it was the duty of the objecting party to point them out and ask for their exclusion. Commonwealth v. Johnson, 199 Mass. 55, 61, 85 Ν. Ε. 188.

[10] During the trial the petitioners filed a motion supported by affidavit that the case be withdrawn from the jury because "during the recess one of the jurymen sitting on the case was in conference with the attorney for the appellants." The judge thereupon heard the parties in chambers. He then asked the