238 Mass. 362 | Mass. | 1921
In the matter of the will of George Becker propounded for probate, on appeal a justice of this court framed and sent to the Superior Court for answers by a jury two issues, as follows:
“First issue. Was George Becker of sound and disposing mind*365 and memory at the time of the execution of the instrument which is now propounded for probate as his last will?
"Second issue. Was the instrument propounded for probate as the last will of said George Becker procured to be made by the fraud or undue influence of Jacob F. Becker and Mary Becker, or either of them?”
In the Superior Court, to the first issue the jury returned the answer “No.” And to the second issue the jury returned the answer “Yes.” No request for rulings was made or refused, and no exceptions were taken to the charge. After the verdict the executor duly filed a motion for a new trial on each issue, for the reason that the answer returned by the jury was against the evidence, the weight of the evidence, was unsupported by the evidence, and was against the law. The trial judge, after a hearing on the motion, made the following order: "The answer of the jury to the first issue is set aside for the first two reasons set forth in the motion. Executor’s motion otherwise denied.” “To the refusal of the judge to set aside the answer of the jury to the second issue, to the refusal of the judge to allow the executor’s motion for a new trial, to the refusal of the judge, having set aside the answer of the jury to the first issue, to set aside the answer to the second issue, the executor duly objected and excepted.”
This exception must be overruled. No question of law was raised for the first time on the motion for a new trial; the assigned reasons presented questions which were addressed to the discretion of the trial judge, which is not subject to the revision of the court unless manifestly wrong. Allen v. Allen, 117 Mass. 27. Dexter v. Codman, 148 Mass. 421, 424. Dunster v. Goward, 221 Mass. 339. Berggren v. Mutual Life Ins. Co. 231 Mass. 173, 176.
During the trial, the contestants framed a hypothetical question; and, on the assumption of the truth of the facts stated, asked a witness who qualified as an expert and specialist in mental and nervous diseases, first directing his attention to the thirtieth day of August, 1919, which was the day of the execution of the will and six weeks and one day before the death of the testator: “what is your opinion as to whether his mind at that time was in a normal condition?” As a “preliminary question” the trial judge permitted the question, and, subject to the exception of the executor the witness replied: “It was not in a normal
Testamentary capacity does not depend upon whether the mind of the testator be above or below that of the ideal man, otherwise stated, upon the normality of his mind; but upon the ability of the testator to understand the nature and situation of his property and his relation to those persons who ought to be in his mind when he undertakes to dispose of his property at his death. Whitney v. Twombly, 136 Mass. 145. But it is well settled that a person may have sufficient capacity to make á will and yet not of sufficient capacity to resist the pressure upon him of strong influence; and whether the use of such influence is lawful or hot may depend upon the condition of mind and body of the person upon whom it is exercised. Dexter v. Codman, supra. Bacon v. Bacon, 181 Mass. 18, 22. Hayes v. Moulton, 194 Mass. 157. It is plain the condition of the mind may be shown or inferred from the fact that the testator had a disease which commonly impaired the minds of persons possessed of it by the slowing up of functional power and increasing its susceptibility to influence. The characterization of such a mental state as not normal, can in the opinion of a majority of the court hardly be said to be so inaccurate and so prejudicial as to require a new trial.
The declarations of the executor and residuary legatee were received rightly. He was the principal beneficiary, and his admissions could not prejudice materially the rights of the remaining legatees, all of whom are contestants. The reason for the rule that one of several legatees or devisees, not in privity with other legatees or devisees, who has procured the will by improper means shall not be permitted through admissions to defeat the rights of other legatees or devisees under the will, ceases when the declarant is the sole beneficiary; or when the interest of the remaining legatees or devisees is merely nominal, and such legatees or devisees seek to prevent the setting up of the will by proof of the undue influence or fraud of the declarant. Phelps
It follows that all exceptions must be overruled.
Exceptions overruled.
