263 Mass. 334 | Mass. | 1928
The will of Charles S. Harris, who died January 19, 1927, having been offered for probate, George S. Harris, a brother of the testator, appeared as a contestant and moved that the following issues be framed for trial to a jury: “Was the instrument purporting to be the last will of said Charles S. Harris dated June 12, 1919, executed according to law?” “Was the said Charles S. Harris at the time
The testator according to the offer of proof was about sixty years of age when the will was executed June 12, 1919, and for at least forty years and during the greater part of his life he had been engaged in theatrical enterprises and when the will was made he was connected with “the Keith Theatrical interests in Boston,” with which he continued to be associated until some time in 1926. Prior to the execution of the will, he was failing mentally and physically, and not only during this period was his conversation incoherent but his conduct was peculiar, and for great periods of time his mentality appeared to be the mentality of a child. But the testator continued in business for seven years after the date of the will and there is no positive statement that, when he executed the will, which is simple in form, giving all his property to Emily Fuller, he did not possess sufficient mental capacity to understand what he was doing. The judge in passing on the second issue could consider the weight of the sweeping assertions just referred to with the fact that the testator continued in business for seven years after the will
We pass to the third issue. The offer of proof recites that the testator became acquainted with Emily Fuller, the sole beneficiary under the will, when she was about ten years of age, and he was nearly forty years old. When she was fifteen he procured for her the position of ticket seller in a theatre near to the theatre of which he was manager. The date of the beginning of their acquaintance is not stated, but about 1917 the testator gave increased attention to her, and before the will was made he was “a very nervous mentally and physically old man.” The mother of Emily encouraged their companionship and they were constantly together and became very close friends in the early part of 1917, and he promised that he would put her into moving pictures because of her beauty and attractiveness and expended considerable money in the effort. • During the time of their acquaintance, which included eight years before and eight years after the will was made, they were associated constantly and she became more and more insistent in her demands upon the testator for money, clothes and other luxuries and for intoxicating liquor to the use of which she had become addicted and was a constant user. The testator entertained an illicit and passionate desire for her although she had “other love affairs,” and for more than eighteen months before the date of the will she demanded that the testator make ample provision for her and her illegitimate child born December 11, 1917, and asked him to marry her although he was then a married man, and insisted “that he leave her all his estate.” The testator also gave to her large sums of money, fur coats, valuable jewelry and expensive clothes. It was further stated that from 1917 to 1926 the testator’s mind became weaker and weaker through old age and his sensual mode of living, which had affected him mentally and physically, so that in 1926 he was relieved of his position at the Boston Theatre, and owing to his immoral relationship with Emily Fuller he was easily influenced by
The judge in the exercise of sound judicial discretion was to determine whether there was a real controversy concerning the contention that Emily Fuller had acquired such dominion over the testator as to cause him to exclude the contestant from sharing in the estate. Adams v. Blair, 255 Mass. 152, 154. Dresser v. Dresser, 181 Mass. 93. The statement of the testator to the contestant in 1918 was made nine years before his death, and the statement to the contestant during his last sickness not only tends to show the testator’s testamentary capacity at that time when he could have revoked
Affirmed.