to give none. The question recognized, and the ownership of the undivided one-fourth our answer recognized, the possibility that she might have dower rights, either assigned or unassigned, in the property, as realty left by her husband. But we did not undertake to say that she had, or to define the extent of them, if she had them. All that we said was that the fee title in the sons or their grantees was subject to such rights as she might have as dowress. In the judgment entered by the lower court upon the return of the cause are two paragraphs embodying adjudications of title which are attempted adaptations of our advice given in response to question "f" as above stated to the situation created by the conveyances. That situation as we defined it was that the widow, Mrs. Emmons, had become substituted for James in respect to all the right, title, and interest in the property which he acquired through the death of his father, and the defendant Gerard in like of which John H. Garfield died possessed. There was no attempt to define the separate interests of each of these two owners. The judgment attempts such a definition by definitely setting out the precise limits of their rights. This could only be done by an attempted adaptation of the advice to facts or assumed facts which it did not directly touch. In the present case the attempt at adaptation was made to facts which must have been assumed to exist, as the court had before it no information thereon. Its only information was that incorporated in the agreed finding prepared for the reservation. As the questions presented in the reservation did not call for more detailed advice upon the subject of the present ownership of the undivided one-fourth, which had been owned by John H. Garfield, than whether or not his interest became vested in his two sons, in equal parts, subject to the dower rights of er inquiry. This is well illustrated by the absence from the finding of the fact, important as affecting the question of dower, of the date of the marriage of John H. Garfield to his surviving widow. It quite likely осcurred prior to April 20, 1877; but it does not so appear. The finding is also silent as to any assignment of dower to the widow. It may be that this silence resulted from the fact that there had been none, and that as a consequence her right in No. 780 Chapel street, aside from that acquired from James, was such and such only as she might have as dowress with dower unassigned. But the court was not justified in so assuming, as it evidently must have done. manner substituted for the other son, Um- the widow, it could scarcely be assumed fairberto, in respect to his right, title, and in- ly that this agreed finding embodied all the terest thus acquired. The adjudications con- facts which might have pertinence to a broadtained in the two paragraphs referred to are: "(f) That said Frankie S. Garfield Emmons at the commencement of this action was an owner in fee simple of an undivided one-eighth part of said land described in the complaint, and the buildings thereon, and, in addition thereto, had the life use of onethird of another undivided one-eighth part of said land and the buildings thereon; the latter being a portion of her dower interest therein. (g) That the deed from the defendant Umberto Dante Garfield to the defendant George L. Gerard is a good and valid deed, and that the defendant George L. Gerard is the owner in fee simple of an undivided oneeighth of said land and the buildings, subject to the life use of the defendant Frankie S. Even if the fact was that the widow, beGarfield Emmons in an undivided one-third ing entitled to dower by reason of the date of said one-eighth, being the aforesaid dow- of her marriage, had never had her dower er right of said Frankie S. Garfield Em- specifically set out, the judgment went too mons." The conclusion that Mrs. Emmons far, in that it adjudged in Mrs. Emmons a was the owner in fee of an undivided one- life use of the one-third instead of a right eighth, being one-half of her husband's one- of dower therein. The distinction is an imquarter, was doubtless arrived at upon the portant one. The language of the judgment theory that the merger of the title of the defined and established her interest in the son James with that of his mother gave her particular undivided one-eighth, of which an absolute title to the one-eighth. In reach- Gerard was adjudged the fee owner, as a ing this conclusion it would be of no moment life use. This imports a fixed and permawhether or not Mrs. Emmons had dower nent life estate in that particular one-eighth. rights in the property. It is the adjudica- A dowress before her dower has been astion as to the remaining one-eighth which signed does not have such an estate in each presents the substantial question at issue. tract of which her husband died possessed. It is manifest that this adjudication goes Her dower is, indeed, a life use, and it at further than did the advice which it purport- taches primarily to all the real estate of ed to follow. The advice, reading together | which her husband was at his death possessed in his own right. But it is subject that part already quoted and other parts which advised that Mrs. Emmons had be- to the condition of being terminated as to come the owner of James' share through a any particular property by the dowress' use conveyance from him, and the defendant being attached to other property through an Gerard of the share of the other son, Umberto, through a conveyance from the latter, designated Mrs. Emmons and Gerard as the assignment of it by the court of probate. The limit of the power of the superior court was to declare the right of the widow to It could neither make an assignment | 4. EVIDENCE (§ 470*)-NONEXPERT OPINIONS of her dower, nor declare her general unassigned dower interest a permanent estate in any specific real estate. Gen. St. 1902, §§ 386, 387; Stedman v. Fortune, 5 Conn. 462, 465; Way v. Way, 42 Conn. 52, 53; Hewitt's Appeal, 53 Conn. 24, 36, 1 Atl. 815. ress. ADMISSIBILITY. The appellant complains of the action of the court as an attempt to assign dower, which confessedly it was powerless to do. It is evident that the court made no such attempt, whatever may be regarded as the legal effect of what was done, and that what it undertook to do was to declare the widow's right to dower in this one-eighth interest. Unfortunately the language chosen to make this declaration in connection with the adaptation of our advice to the conditions assum ed to have been presented was inapt and inaccurate, and such as carried the court beyond the limits of its power, of the facts before it, and of our advice. Our discussion suggests that the reasons of appeal may not in strictness point out, as required, the error or errors involved in the court's action. This is doubtless true in part at least, but we do not for that reason feel justified, under the circumstances of the case, in asserting the right which the statute gives us to disregard errors not sufficiently assigned. Gen. St. § 802. There is error, the judgment is set aside, and the cause remanded for the rendition of judgment in conformity with the advice of this court upon the reservation. The other Judges concurred. (84 Conn. 169) ATWOOD et al. v. ATWOOD. (Supreme Court of Errors of Connecticut. March 8, 1911.) 1. EVIDENCE (§ 470*) - NONEXPERTS - OPINIONS-ADMISSIBILITY. Opinion evidence based upon special skill or knowledge, or upon facts and conditions which may be reasonably described and made clear to the trier without the aid of the impression or conclusion of the witness gained from them, may not be given by a nonexpert witness. [Ed. Note. For other cases, see Evidence, Dec. Dig. § 470.*] 2. EVIDENCE (§ 501*)-OPINIONS-NONEXPERT -ADMISSIBILITY. A nonexpert cannot testify to an opinion not based on facts stated by him or not acquired through use of his senses. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2292-2305; Dec. Dig. § 501.*] 3. EVIDENCE (§ 501*)-NONEXPERT OPINIONS ADMISSIBILITY. A nonexpert witness, who has had opportunity to acquire knowledge on a given subject through use of his senses, can testify to the impression or conclusion obtained by him, leaving it to the cross-examination to develop the basis, where the constituent facts and conditions are so numerous or complicated as to be incapable of separation or cannot be recollected or detailed. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2292-2305; Dec. Dig. § 501.*] The admissibility of a nonexpert opinion is tested by its relevancy, its being the best evidence the case admits and the witness' competency, whether the opinion relates to physical or mental conditions. [Ed. Note. For other cases, see Evidence, Dec. Dig. § 470.*] 5. EVIDENCE (§ 477*) -OPINIONS - PHYSICAL CONDITION. A nonexpert witness, having stated her means of knowledge, could testify of one's physical condition that she was "very poor indeed, so low it was beyond asking her anything, and in a condition to know nothing." [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2237-2241; Dec. Dig. § 477.*] 6. WITNESSES (§ 248*) - EXAMINATION-NON RESPONSIVE ANSWERS. An answer, which is relevant and material to the issue, although not responsive, should not be stricken when the witness is competent. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 861-863; Dec. Dig. § 248.*] 7. EVIDENCE (§ 220*)-ADMISSIONS-ACTS OF THIRD PERSONS. Act of tax assessors in designating property as held under life use does not bind the owner as an admission, if done without her authority and knowledge. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 771-785; Dec. Dig. § 220.*] 8. APPEAL AND ERROR (§ 1058*) - REVIEWHARMLESS ERROR-EXCLUSION OF EVIDENCE. Error in excluding testimony is harmless, where other witnesses were permitted to testify to the particular fact. ン [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200-4206; Dec. Dig. § 1058.*] 9. EVIDENCE (§ 478*) - OPINIONS - MENTAL CAPACITY. In an action to set aside a deed wrongfully induced while grantor was ill, witnesses could testify that while ill grantor was not capable of transacting business or making any contract. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2242-2244; Dec. Dig. § 478.*] 10. DEEDS (§ 203*)-FRAUD-EVIDENCE. In an action to set aside a deed wrongfully induced while grantor was ill, she could testify how and when she first learned that defendant claimed an interest in the property, and that she did not give defendant any kind of paper, blank deed, or any kind of deed. [Ed. Note. For other cases, see Deeds, Dec. Dig. § 203.*] Appeal from Superior Court, New Haven County; Joel H. Reed, Judge. Action by Mary J. Atwood and others against Frank G. Atwood. Judgment for plaintiffs, and defendant appeals. Affirmed. On April 17, 1901, the plaintiff Mrs. Atwood was the owner in fee of the property in suit. On April 1, 1901, Mrs. Atwood became ill with typhoid fever and her mind during her illness seriously affected, and, when she was incapable of managing her affairs and not competent to make a deed or comprehend what she was doing, the defendant caused to be drawn a deed of said premises, took it and a notary with him on April 17, 1901, to her house, and then the defendant took her hand and made the cross which appears over her signature to said deed above the letter "J." Mrs. Atwood never signed said instrument otherwise. One of the two witnesses to said instrument was not present when said cross was placed on said instrument and did not know that she was signing her name as a witness. The notary asked Mrs. Atwood if it was her free act and deed, and she made no intelligible response. The notary signed as one of the witnesses. Except as stated, the acknowledgment was in due form. Mrs. Atwood knew nothing of said instrument until seven years thereafter. There was no consideration for said instrument and no delivery thereof. On December 5, 1907, Mrs. Atwood, without knowledge of said instrument, conveyed said premises to Lillian A. Allen by warranty deed. The rulings on evidence involved in the decision sufficiently appear therein. Other objections and exceptions relate to the questions of want of consideration for the deed and defective execution and acknowledgment, or questions which relate to the charge of fraud, which was not found, and, in view of the ground of the decision, become immaterial. George E. Beers, Harry J. Beardsley, and Arthur B. O'Keefe, for appellant. Charles G. Root, for appellees. WHEELER, J. (after stating the facts as above). The finding is explicit in its statement that on April 17, 1901, when the deed from the plaintiff to the defendant, which this action seeks to set aside, purports to have been executed, Mrs. Atwood was mentally and physically incapable of making the deed and did not then comprehend what she was doing. On this finding no other judgment was possible, and, unless rulings upon the evidence tending to prove the incapacity of the plaintiff materially prejudicial to the defendant were made on the trial, the judgment must stand. The witness Mrs. Allen, having stated her means and opportunity of knowledge, testified that between April 11 and 16, 1901, Mrs. Atwood was "very poor indeed, so low it was beyond asking her anything, and in a condition to know nothing really." This evidence was objected to because the opinion of a nonexpert witness, from whom nothing save what the witness saw and heard was admissible. He not be laid in evidence. Turner's Appeal, 72 Conn. 305, 315, 44 Atl. 310. The witness may state the facts on which the opinion rests. He is not required to do so. must show that he had the means and opportunity for knowledge. His opinion without this foundation is inadmissible. When, however, a subject is relevant to the matter in suit, and the lay witness has had the means and opportunity of acquiring knowledge of the subject through the use of his senses, and the impression or opinion is formed from constituent facts and conditions which are so numerous or so complicated as to be incapable of separation, or so evanescent in character, they cannot be fully recollected or detailed, or described, or reproduced so as to give the trier the impression they gave the witness, or so as to enable the trier to draw a fair inference from such facts and conditions, he may be permitted to testify to the impression or conclusion obtained by him from them, leaving it to the cross-examination to develop the foundation for the impression or conclusion. Spencer's Appeal, 77 Conn. 638, 643, 60 Atl. 289; Turner's Appeal, 72 Conn. 305, 315, 44 Atl. 310; Chamberlain v. Platt et al., Receivers, 68 Conn. 126, 130, 35 Atl. 780. The exceptional witness may be able at times to describe the eye or the action of a man; but he cannot convey distinctly to another the appearance of the man to him, unless he may give the impression made upon him or the conclusion reached by him, from the man whom such acts and look portray. We cannot express in words the facts and conditions which lead us to the opinion that one is under the influence of hate or love, pain or pleasure, hope or fear. We cannot describe exactly our own emotions, sentiments, and affections, much less those of another. Memory may retain no single detail, indeed one may never have recognized a single detail; yet the appearance of the man may have left upon the mind an indelible impression as to his physical and mental condition. Clear before him is the picture of what he saw-a man healthy or sick, strong or fragile, well or poorly, changed in health for better or worse, composed or nervous, excited or despondent, tired or exhilarated, intellectual, or weak-minded, conscious or unconscious, suffering or happy. In truth, that which we call opinion is fact. The impression or conclusion is the sum of what he saw, and in its final analysis the offer is to prove a fact and not an opinion. Wigmore on Evidence, vol. 3, § 1918; Turner's Appeal, 72 Conn. 305, 315, 44 Atl. 310. Opinion evidence, which is based upon special skill or knowledge, or upon facts and conditions which may be reasonably described and made clear to the trier without Every trial, as a rule, is filled with sothe aid of the impression or conclusion of called opinion evidence from the nonexpert the witness gained from them, may not be witness; it is so constant and so common given by the nonexpert witness. An opinion it is not distinguished from other evidence of a nonexpert witness which does not rest except in the occasional instance. With a upon facts stated by him, or is not ac- better understanding of when and how may be used, we find in trials its use in-cepted to the court's refusal to strike this creasing, and with the growing complexity out. of our life this is inevitable and indispensable if we would reach the truth. There is only one test for the nonexpert opinion: Is the evidence relevant, is it the best the nature of the case admits of, and does it come from a competent witness? Hardy v. Merrill, 56 N. H. 227, 241, 22 Am. Rep. 441. If these conditions are fulfilled, the evidence is admitted from necessity, because either the witness cannot otherwise describe it, or describe it in its force, extent, and meaning so that another may see or know what he saw and knew. The same rule and the same reason for the rule exist whether the opinion relate to physical or mental conditions. Wigmore on Ev. vol. 3, § 1918. Our decisions with their citations furnish many instances of nonexpert opinion evidence deemed admissible. Among the cases of the last few years in other states are found these illustrations of the proper application of this rule. That one was in good or bad health: Chicago City Ry. Co. v. Van Vleck, 143 Ill. 485, 32 N. E. 262; Johnson v. Union Pacific R. Co., 35 Utah, 285, 100 Pac. 390, 394; Davis v. Oregon Short Line R. Co., 31 Utah, 307, 88 Pac. 3, 6. That one seemed very feeble, seemed to be crippled: Dilburn v. L. & N. R. Co., 156 Ala. 228, 47 South. 210. That one's hearing was acute or dull: Chicago City Ry. Co. v. Van Vleck, supra. That one was in pain or suffering: Morris v. St. Paul City Ry. Co., 105 Minn. 276, 117 N. W. 500, 502, 17 L. R. A. (N. S.) 598; Davis . Oregon Short Line R. Co., supra; Kline v. Santa Barbara Con. Ry. Co., 150 Cal. 741, 90 Pac. 125, 129. That one was excited: Kinner v. Boyd, 139 Iowa, 14, 116 N. W. 1044. That one was intemperate: Taylor v. Security Co., 145 N. C. 391, 59 S. E. 139. That one was nervous: Ill. Central R. R. Co. v. Rothschild, 134 III. App. 504, 511. That one's hearing was truculent: White v. Met. St. Ry. Co., 132 Mo. App. 339, 349, 112 S. W. 278. That one had a sneer on his face: White v. Met. St. Ry. Co., supra. That one manifests affection: Spencer's Appeal, 77 Conn. 638, 643, 60 Atl. 289; In re Miller's Estate (Utah) 102 Рас. 996, 998. That one's disposition was bright and cheerful: Pullman Co. v. Hoyle et al. (Tex. Civ. App.) 115 S. W. 315, 318. It is true this was not responsive, but an answer which is relevant and material to the issue, although not responsive, should not be stricken out when the witness is competent. This evidence was of such a character; Mrs. Atwood could not be bound by the act of the assessors without her authority or knowledge. It does not appear that the witness had no personal knowledge of the fact he testified to. When that fact appeared, the motion to strike out might have been renewed. Questions of this character are largely within the discretion of the court, and only in exceptional cases should incumber a record on appeal. In this instance no harm could have been done, for the evidence subsequently came in, in due course, from other witnesses. Two witnesses were permitted to testify, over the defendant's objection, that during the period of her illness Mrs. Atwood was not capable of doing business or making any contract or agreement. We think this evidence, under the circumstances of this case, was admissible as an opinion as to her general mental condition and the degree of her mental incapacity. If a question of this character called for a legal conclusion as to the capacity of one to make a particular will or a deed or a contract, it would be objectionable. This distinction is pointed out in Hayes, Conservator, v. Candee, 75 Conn. 131, 137, 52 Atl. 826, and the admissibility of questions of this character definitely determined in this case and in Turner's Appeal, 72 Conn. 305, 315, 44 Atl. 310. Mrs. Atwood was asked: "How and when did you first discover that Frank G. Atwood claimed to have any interest in it (the property in dispute)?" She replied, "About three or four months ago, when I had to pay taxes they sent on, and I did not know what to make of it." This was objected to as immaterial. We think it very material upon the question of her mental capacity at the execution of the deed, and whether she ever delivered the deed. It was undoubtedly admissible for other reasons, including the claim of fraud which was at that time a part of the case. Mrs. Atwood was further asked, "Did you give him any kind of a paper, a blank deed or any kind of a deed?" and the question The opinion evidence in question was and her answer, "No," were objected to clearly admissible. because immaterial, and by her deed and acknowledgment she was estopped. This evidence was admissible on the ground of the former question, which we need not repeat. The assessment list of Mrs. Atwood embraced the property in dispute. It was offered in evidence as an admission that Mrs. Atwood only owned a life interest in the property. One of the assessors identified Other ruiings are unimportant in view the list and stated that the words "Mary J. of the finding of a want of capacity in Atwood life use" were in assessor Calla- Mrs. Atwood to make the deed. And the han's writing, and he added, "Atwood life finding of a want of delivery would have Action by Walter S. Swayne against GioThere is no error. The other Judges con- vanni Felici and others to recover rent uncurred. of mental capacity, since there is no ruling on evidence which could in any event disturb this finding. Appeal from City Court of New Haven; Albert McC. Mathewson, Judge. (84 Conn. 147) SWAYNE v. FELICI et al. (Supreme Court of Errors of Connecticut. March 8, 1911.) 1. LANDLORD AND TENANT (§ 136*)-COVENANT-BREACH-DAMAGES. In an action against a tenant for breach of a covenant to cultivate peach trees, a witness should have been permitted to testify that the proper method of growing peach trees was to cultivate between the trees. [Ed. Note. For other cases, see Landlord and Tenant, Dec. Dig. § 136.*] 2. EVIDENCE (§ 434*)-WRITTEN CONTRACT PAROL EVIDENCE-FRAUD. Where, in an action on a lease, defendants claimed that plaintiff had orally promised to build a house and dig a well on the rented premises, had fraudulently represented that such agreement was in the lease, that defendants were ignorant and unable to read English, that such agreement was fraudulently omitted from the lease, and that defendants were required to abandon the premises because of plaintiff's refusal to perform such agreement, evidence of the making thereof, though inadmissible to alter the conditions of the lease, was competent on the issue of fraud. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2005-2020; Dec. Dig. § 434.*] 3. EVIDENCE (§ 471*) -CONCLUSIONS. On an issue whether certain agreements had been fraudulently omitted from the lease sued on, a question asked of one of the defendants, as to plaintiff's agreement to build a house and sink a well on the premises, "Now what was said; what was to be put in that lease as you understood it?" was inadmissible. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*] 4. LANDLORD AND TENANT (§ 233*)-ACTION ON LEASE-FRAUD-BURDEN OF PROOF. Where, in an action for rent under a lease, defendant pleaded that certain of the landlord's agreements had been omitted from the lease by fraud, an instruction that the burden of proving the fraud alleged was on the defendants was proper. [Ed. Note. For other cases, see Landlord and Tenant, Dec. Dig. § 233.*] 5. TRIAL (§ 251*) - АсTION FOR RENT - INSTRUCTIONS-ISSUES. In an action for rent under a lease for the time after defendants had abandoned the premises, there was no issue tendered in the answer that defendants had abandoned the property with plaintiff's consent, but the answer pleaded that the lease had been obtained by fraud. The judge charged that, if the jury found the lease was valid, they were bound to find for plaintiff in the sum of $150 for rent, whereupon defendants' counsel asked the court if that would be true if defendants abandoned the premises by consent, to which the court replied in the negative, and added that, if there was an agreement for surrender, defendants were entitled to a deduction for the term for which the premises were abandoned by plaintiff's consent. Held, that such instruction was erroneous as not within the issues. [Ed. Note.-For other cases, see Trial, Dec. Dig. § 251.*] der a written lease, damages for waste, and for breach of a contract to cultivate trees. Verdict for defendants, and plaintiff ap peals. Reversed. Ward Church, for appellant. Robert C. Stoddard, for appellees. HALL, C. J. The complaint in this action, dated February 1, 1906, contains three counts. The first alleges that, under a written lease to the defendants of the premises in question for the term of five years from November 1, 1904, for the annual rent of $300, payable in semiannual payments of $150 in advance, there became due the plaintiff on the 1st of November, 1905, the sum of $150, which has not been paid. The second, that in violation of the covenants of the lease the defendants committed certain acts of waste, and by their abandonment of the leased premises, at the end of the first year of the term, caused the same to be damaged and injured. The third, that the defendants failed to cultivate certain trees in accordance with the covenants of the lease. The complaint asks for $1,000 damages. One of the answers to all the counts alleges, in substance, that the plaintiff fraudulently procured the defendants to execute the lease in question by representing to them that he would build a dwelling house and dig a well upon the premises for the use of the defendants, and would incorporate such agreement in the written lease to be prepared, and by falsely and fraudulently stating to the defendants, who were ignorant and unable to read English, that such a provision was incorporated in the written lease which they signed; that the plaintiff refused to build the house and dig the well, and thereby prevented the defendants from using or occupying the premises, and compelled them to abandon them, which they did after due notice to the plaintiff. The reply denies the allegations of fraud. The errors assigned are rulings upon questions of evidence and certain language of the charge. The former call for but a brief notice. The plaintiff's witness H. C. Smith should have been permitted to testify that the proper method of growing peach trees was to cultivate between the trees. This, it is alleged, the defendants had covenanted to do, and the evidence offered tended to support the plaintiff's claim for damage for the breach of that covenant. The testimony received of the defendant Ferrucci, that the plaintiff orally promised to build a house and dig a well, was inadmissible for the purpose of proving such a |