336 Mass. 300 | Mass. | 1957
This is an appeal from an order of the Probate Court denying a motion for the framing of jury issues, first, whether the instrument purporting to be the last will of Harriett Ena Morton was executed according to law and, second, whether she was "at the time of the execution of the said alleged will of sound mind.,, The contestants do not now argue that there was error in the denial of the first issue and we confine our discussion to the refusal to grant the second one.
This case was submitted upon the statements of counsel, from which the following facts appear. Miss Morton was a native of Nova Scotia. ■ After teaching school there for a few years, she attended and graduated in 1894 from Acadia University. She taught high school for many years in Milford and Springfield in this Commonwealth retiring with a pension in 1928 from the teaching staff of the latter city. She lived with her brother Albert and his wife until his death in 1948 and thereafter with the wife until 1952 when she went to a rest home where she thereafter lived with the exception of two periods when she was confined to a hospital. She died on January 4, 1955, in her eighty-eighth year.
■ She knew the proponent, Mr. Cowee, for several years. He had acted as counsel for her, as executrix, in settling the estate of her brother Lewis in 1937 to 1940 which estate amounted to $99,000. She also consulted him up to 1947. In 1945 she brought in to Mr. Cowee the draft of a will in her own longhand in which a friend and Mr. Cowee were named as executors. Upon the death of the friend, Miss Morton prepared in 1947 another draft naming Mr. Cowee alone as executor. Both of her drafts were put in evidence.
The proponent offered to show by her account books that she made her own investments, paid her own bills, kept her own checking accounts, had a safety deposit box, and made out her own income tax returns until 1952 when she was prevented by failing eyesight. She insisted upon receipts for funds she had contributed to charitable causes. These account books were kept in detail in good, legible handwriting showing the dividends and the pension checks received, and the deposits and the payments made. She capably took care of all her own business.
•She knew what her estate consisted of and how much she had to give away. She knew all her relatives and corresponded with some of them. She said that some of them did not need any money. She remembered others with small gifts. She bore no ill will to any of them. She knew how much each had received from the estates of her brothers Lewis and Albert.
She was confined to a hospital on two occasions, the second and last being with arteriosclerosis of the heart and other complications to which she succumbed on January 4, 1955.
It is settled that in order to allow the framing of an issue there must be shown a genuine and doubtful question of fact supported by evidence of such substantial nature as to afford ground for reasonable expectation of a result favorable to the party seeking the framing of the issue, Fuller v. Sylvia, 240 Mass. 49, Wood v. McDonald, 332 Mass. 220; and where as here the case is heard upon the statements of counsel, it is our duty to examine these statements and to decide the case in accordance with our own judgment giving due weight to the decision of the probate judge. Cook v. Mosher, 243 Mass. 149. There is nothing contained in the will which indicates that Miss Morton did not comprehend the nature and situation of her property and her relation to those who might reasonably expect to
Order denying jury, issues affirmed.