This is an appeal from a decree entered in the Probate Court for the county of Norfolk denying a motion that jury issues be framed in the matter of the petition for probate of an instrument purporting to be the last will of Kate S. Gallaher (hereinafter called the. deceased), late of Brookline in said county, who died on May 29, 1937. The contestants are four first cousins of the deceased who are alleged in the petition for probate to be her heirs at law. The motion was heard on statements of counsel and certain documentary evidence. The instrument offered for probate was executed on December 21, 1934. By its terms pecuniary legacies of $4,000 and $3,000, respectively, are given to two persons described as cousins, and $2,000 and $1,000, respectively, to two persons described as friends. No provision is made therein for the contestants, and the fifth paragraph of the instrument reads as follows: "For good and sufficient reasons I purposely omit to make any bequest or devise to any and all other relatives of mine.” The residue of the estate of the deceased is devised and bequeathed to the proponent.
The motion for jury issues was that issues be framed whether the instrument was executed according to law, whether the deceased at the time of its execution was of sound mind, and whether its execution was procured by the fraud or undue influence of Margaret V. Foley and William J. Foley (the proponent), or either of them, exercised upon the deceased.
The proponent made statements of expected testimony tending to show that the instrument offered for probate was prepared by a lawyer of high standing at the bar from instructions given him by the deceased, personally, on an occasion when she went to his office unaccompanied; that for twenty-five or thirty years he had been her legal adviser; and that under her instructions he had drawn prior testamentary instruments in 1923 and 1925. The 1925 instrument and a carbon copy of the 1923 instrument were offered in evidence. Under the instrument of 1923 pecuniary legacies of approximately $60,000 were given to charities, friends, and certain persons described as cousins of the deceased, and there was a bequest of $1,000 for the care of her burial lot; the residue was given to the proponent, who was described as a cousin. No provision was made in this instrument for any of the contestants. The instrument executed by the deceased under date of October 2, 1925, contained pecuniary legacies totalling $41,000 to persons described as cousins and friends and a bequest of $1,000 for the care of her burial lot, and devised and bequeathed the residue to the proponent, who was again described as a cousin of the deceased. Other statements of expected testimony made by the proponent may be summarized as follows: that the counsel who prepared the testamentary instruments just referred to would testify that the proponent had not seen him in connection with nor discussed with him the subject of any will of the deceased; that other witnesses would testify that on numerous occasions the deceased had stated that she had made her will several times but had to change it because people had died to whom she had made bequests, and that this was the fact; that the deceased spoke to friends “more about the Foley family” than about anyone else; that as she was about to take a trip “around the world” she stated to a friend “If anything happens to me I want everything I have to go to Bill Foley. He has been good to me ... I couldn’t manage all my business affairs myself and when other
The contestants urge that, in the circumstances expected to be proved by them, as the proponent was the trusted business agent of the deceased, thus occupying a fiduciary relationship toward her, his general conduct toward her and his acts with reference to the making of the alleged will generally call for a searching examination. That
Decree affirmed.