322 Mass. 425 | Mass. | 1948
This case comes here by report after a jury trial in the Superior Court upon the issue whether the will of Mary A. Eennick, late of Peabody, was procured by the fraud or undue influence of her nephew Charles Eennick and his wife Margaret Eennick or either of them. The jury answered in the affirmative. Orders of the judge on various motions appear to be the matters included within the scope of the report, but the only question of law involved is the question whether the evidence warranted the verdict.
We summarize the evidence in its aspect most favorable to the contestant. Mary A. Eennick died July 5, 1943, aged sixty-seven. Her nearest relative was her brother Eichard J. Eennick, the contestant, who lived with her in one of four tenements contained in two houses which she owned worth $3,800 in all. She also left a nephew, Charles Eennick, who was the son of a deceased brother. Aside from her real estate, a diamond ring, watch, and clothing, her estate consisted of about $3,400 in bank accounts which she had received by the will of a third brother Edward, who died in 1938, a widower without issue. The real estate had originally belonged to the father of Mary and of her three brothers. After the father’s death, her brothers, including Eichard and the father of Charles, had conveyed their interests to Mary. There was evidence that before Edward drew his will leaving his bank accounts to Mary there was talk in Mary’s presence about providing for Eichard; that Edward said he was leaving nothing to Eichard because he thought Mary ought to take care of everything when he went; that she would take care of Eichard; and that he wanted Mary to “pass it on” to Eichard. Several months after Edward’s death, in 1938, Mary did make a will wherein she left all she had to Eichard. Eichard seems to have been in genuine need of all the assistance he could get. He was sixty-five years old at the time of the trial. For twenty-six years his “business” had been selling catnip which he pre
This state of affairs continued until 1943, when Mary went to a convalescent home during her last illness. While there, thirteen days before her death, she made the alleged will now offered for probate. In this alleged will she gives her real estate to Charles in trust for the support and care of Richard with the right in Richard to use one of the tenements as a home during his life. Charles is to use the income from the other tenements for taxes and upkeep and to pay Richard such amount as he “deems advisable” and upon the death of Richard is to receive the real estate free of trust. Charles also receives the entire residue of the estate except two legacies of $50 each, and a legacy of a watch, and except that Mary’s coat and ring and a third legacy of $50 are given to Charles’s wife Margaret. By reason of this change in Mary’s will, her brother Richard, instead of receiving her whole estate, would receive only an interest in one tenement as long as he occupied it and so much of the net income, if any, of the rest of a $3,800 piece of real estate as the judgment and good faith of Charles might allow him.
After Mary went to the convalescent home Charles and Margaret came to see her practically every day for the first week and on an average of two or three times a week while she was there. On the day when the lawyer came to get instructions for the alleged will Mary sent for the priest, who came and anointed her. It was Charles who sent for the lawyer. The jury were not obliged to believe his testimony that he “was told Mary wanted to make a will and was asked if he knew a lawyer.” Charles and Margaret were at the home when the lawyer came. The lawyer had a talk with Charles, who told him that his (Charles’s) father “did not get his share [of the property] with the others.”
There was much conflict in the evidence as to Mary’s physical and mental condition when the will was executed. She died of coronary thrombosis, arteriosclerosis, and hypertension. There was medical evidence that these diseases often cause progressive enfeeblement of the mind. There was evidence that before the alleged will was made Mary’s mind was “waning”; that she would “repeat things” and “ramble on”; that the night before the lawyer came she was “wandering in her speech” and that morning “did not recognize anyone”; that she “could not put a glass to her lips”; and that she had never said anything to her nurse about changing her will.
In the opinion of a majority of the court it cannot be said that if the jury believed the foregoing evidence a finding of undue influence was unwarranted. The meaning of undue influence is fully explained in Neill v. Brackett, 234 Mass. 367, 369. The jury could find that when the alleged will was made Mary’s condition was such that very slight influence would be undue. They could find that Charles and Margaret had the opportunity to exercise that influence. They could find that Mary’s brother Richard, with whom she lived, would naturally be the principal object of her bounty and needed her assistance; that her provision for him was inadequate; that in her will made in 1938 she had given him all she had; and that the new alleged will repre
In cases of this kind the circumstances differ so greatly that extended citation of other decisions is of little value. However, similarities to the present case in various respects can be found in Dresser v. Dresser, 181 Mass. 93, Emery v. Emery, 222 Mass. 439, Goldsmith v. Gryzmish, 238 Mass. 341, Flynn v. Cunningham, 244 Mass. 306, 308-309, Raposa v. Oliveira, 247 Mass. 188, Fitch v. Fitch, 249 Mass. 550, McMann v. Murphy, 259 Mass. 397, Eddy v. Eddy, 281 Mass. 156, Crosby v. Tracy, 290 Mass. 46, and Mirick v. 297 Mass. 250.
Orders affirmed.