222 Mass. 439 | Mass. | 1916
The executrix and widow of the testator having offered the will for probate, the testator’s children by a former marriage contested its allowance on the ground that the instrument had been procured to be made through fraud or undue influence of the widow, to whom and to her two sisters, one of whom had been adopted by him, he bequeathed the bulk of his property. The jury having decided in favor of the contestants,
We assume on the record, that apart from this request full and appropriate instructions were given, and there are no exceptions to the admission of evidence, which ranged approximately from four years before the date of the will to two years thereafter. The first marriage, the birth of the children, the divorce proceedings of the first wife, who has survived her former husband, the second marriage and the adoption were uncontroverted, and there was no direct evidence that the widow ever induced or sought to induce her husband to make any testamentary disposition of his property.
The nature of fraud or undue influence sufficient to vitiate a will has often been defined. Whitcomb v. Whitcomb, 205 Mass. 310, and cases cited. It may be produced by unceasing importunity or by the silent yet resistless power which a strong will exerts over a less forceful and resolute individuality. The boundary, where legitimate influence on the part of a wife to persuade her husband to make a testamentary disposition of his property in compliance with her wishes ends and illegitimate persuasion or coercion begins, cannot be ascertained with the accuracy of mathematical demonstration. Hall v. Hall, L. R. 1 P. & D. 481. While, the fundamental law is certain, the facts vary with the circumstances of each case. It needs no discussion to make evident that where either spouse is charged with having overcome the volition or free agency of the other, the very relation of husband and wife, as well as the nature of the, wrong, generally preclude the procuring of direct testimony, and resort to proof of circumstances which are admissible to establish the charge becomes necessary. Woodbury v. Woodbury, 141 Mass. 329, 331. Hoffman v. Hoffman, 192 Mass. 416. Old Colony Trust Co. v. Bailey, 202 Mass. 283. Aldrich v. Aldrich, 215 Mass. 164. The evidence, of course, must show that the testator disposed of his property differently than he would have done if he had been left free to exercise his own judgment. Or, in other words, the issue is, was such influence exerted and, ■ if so, did the testator yield to it?
So ordered.