Dresser v. Dresser

181 Mass. 93 | Mass. | 1902

Barker, J.

This case is before the full court upon exceptions taken by the executors at .a trial by jury at the bar of the Superior Court of issues as to an instrument purporting to be a will, proceedings for the probate of which are pending in the Supreme Judicial Court for the county of Worcester. At the trial the only contested issue was whether the testator was induced to execute the instrument through undue influence exercised upon him by his wife, and the verdict upon this issue was in the affirmative. The exceptions taken at the trial were to the admission of certain testimony, and these are not now pressed, and to the omission to give certain .instructions in the charge and to the charge so far as it differed from the requests for instructions. At the argument before us the only contention made by the executors was that the judge erred in declining to take the case from the jury upon the contested issue upon the ground that there was no evidence to warrant a verdict for the contestants. Hence we consider only that question.

The testator died on August 31,1899, when nearly eighty-one years of age. The instrument propounded as his will was executed on July 15,1895, when he was in his seventy-sixth year. He was a cotton manufacturer and attended to his business up to the day of his death. His only ailment seems to have been a chronic neuralgia. At the time of his death the value of his property as estimated by one of the persons named as executor was $150,000 and as estimated by another person also so named was $175,000, and he seems to have been for many years possessed of a competency. In 1878, having been twice married, he was married to his present widow. At that time he had three children, two sons and a daughter. The woman he then married had one son then nineteen years old.

Before 1882 he had made a will as to the provisions of which the evidence gives little information, except that it contained a public bequest. On January 21, 1882, he made a second will which was in evidence. This will gave his wife the sum of $35,000, the use of his homestead for life, his household furniture and other things of that general nature, and gave to his wife’s son in a certain contingency what he considered as an equivalent for the money brought him by his wife, and made his wife and his three children his residuary legatees equally, the issue of any child who might be dead at his decease to take by right of representation, but providing that an indebtedness of some $14,000 due from his eldest son should be applied as a portion of his interest. The eldest son and wife were named as executors. The principal changes in the disposition of his property by the instrument of July 15, 1895, were that the eldest son was given but SI and released from all obligations to his father, that the residuary estate was given to the wife and the other son and daughter only, with a limitation under which the children of the eldest son could not have any share in the residue if the residuary legatees should not survive the testator, and that, the eldest son was not named as an executor.

The eldest son was married in 1869, and for fifteen years from that time lived in the South, returning to his former residence here in 1884, and dying late in the year 1895, leaving a widow, four sons and one daughter, of whom but one was then of age.

The instrument of July 15, 1895, was prepared for execution by an attorney at law who was the usual counsel of the testator, from a draft brought by him to the attorney and from oral instructions given in consultation with the attorney at his office, and was there executed. There was no claim that the instrument2 was procured by undue influence on "the part of the attorney.

It was practically conceded at the trial that for many years the attitude of the testator’s wife towards his eldest son had been hostile. She herself testified that it was disagreeable and that she could not tell whether it existed in 1882, that it came on gradually, and that there came a time when she determined that family visits and communications with him should cease, and that there were a number of causes of which she would rather not speak" unless obliged to.

On the other hand there was abundant evidence tending to show that the esteem and affection of the father for this son continued strong and unchanged and that the father was deeply and constantly pained by the attitude of his wife.

Examining the evidence in the light of these circumstances, all of which might have been found by the jury, and which do nob seem from the bill of exceptions to have been much disputed at the trial, we find much evidence which would justify a finding that the testator’s wife had acquired and exercised over him a domination, particularly in his conduct in respect of his eldest son, which a jury might well find to be undue influence. Without attempting to sum up this evidence it is enough to say that it tended to show that because of this domination of the wife and of her hostility to the son the father against his own will de-' clined to visit the son’s house, to have the son at his own house, and when in the presence of his own wife he met the son in the street omitted to recognize him, although the father when without his wife was in the habit of recognizing the son in the street and of entering into conversation when they met.

The evidence also tended to show that the wife knew the contents of the will of 1882, that she saw the draft memorandum from which the instrument of 1895 was drawn before it was taken to the attorney, and she in substance admitted in her own testimony that she made to her husband the suggestion which resulted in the dropping of the eldest son as one of the executors,

If the jury found as they might a domination amounting to undue influence established over the testator by his wife and exercised against the interest of his son in numerous ways, from the existence of that condition and proof that the wife made some suggestion which found effect against the son’s interest in the will by depriving him of an executorship, and from the tenor of the will of 1895 as compared with that of 1882, they were warranted if they saw fit in finding a verdict in the affirmative upon the issue, and the judge was warranted in sending it to the jury.

Exceptions overruled.