299 Mass. 398 | Mass. | 1938
This is an appeal from an order of a judge of probate denying a motion for the framing of an issue for a trial by jury concerning an instrument, dated December 31, 1936, offered for probate as the last will and testament of Julia Feeney of Lynn. The proposed issue relates to undue influence on the part of the decedent’s daughter, Lillian J. Frawley, and Arthur J. Frawley, her husband. The case was heard on statements, which are reported, made by counsel of the respective parties as to the evidence which they expected to offer if there should be a jury trial.
The rule governing the framing of issues has been restated recently and needs no repetition. Woodwell v. Sloman, ante, 17.
The decedent died on January 21, 1937, at the age of seventy-three. The instrument offered for probate is dated December 31, 1936, and the value of the decedent’s property is estimated at from $40,000 to $60,000. The decedent, who had been a widow for about thirty years, left a son, a daughter, and a granddaughter. The son had been away from home for a long time, and, without going into the narrated details of his life and relations with his mother, it well could have been found that he did not have many claims to his mother’s bounty. The daughter, Lillian J. Frawley, who is the residuary legatee named in the instrument, has always lived with her mother. In 1926 she married Arthur J. Frawley, an attorney. They have two children, and with the decedent have constituted one family since the marriage, Frawley paying the household bills except those for heat and telephone. The other daughter, Helen, the mother of the granddaughter, had some difficulties with her husband in 1919. They separated, and she and her daughter, Lillian Snell, who is the contestant, came to live with the decedent. Helen died in 1920 and the granddaughter was then taken from the decedent by her father. In 1922 the decedent made a will, by the terms of which she gave $1 each to her son and granddaughter, and all the rest and residue of her estate to her daughter Lillian. In 1930 the decedent was about to undergo a very serious surgical operation, and while upon the operating table in the hospital she destroyed
The record contains conflicting statements as to the attitude of the decedent toward the granddaughter. There is very little, if anything, even by way of suggestion, that the relationship between the decedent and her daughter Lillian was anything but most happy and harmonious. The instrument offered for probate was drawn by Arthur J. Frawley, the decedent’s son-in-law, and aside from the statements alleged to have been made by the decedent as to her intentions with respect to her relations and what provision she was to make for them by will, the principal contention of the contestant is that the relationship between the decedent and Frawley was of such a character that an issue should be framed on the undue influence of his wife and himself.
After the decedent came out of the hospital in August of 1930, she having destroyed the 1922 will in May, it is said that she expressed some anxiety over the attitude of Frawley and referred to his conduct toward her to which she objected, giving some instances; that he was very acute about money matters, and in general “she sized him up as being decent in his treatment of his wife but otherwise, in his treatment of her, she didn’t like him”; that if he knew about her disposition, or proposed disposition, of her property, she was anxious as to the effect it might have on his attitude toward his wife and toward her; and that she did not want him under any circumstances to share in her money, and wanted to provide in her will so that he would have no control over what she gave Mrs. Frawley and so that he could not persuade the latter to give him any control over it. At the same time she discussed her son and expressed a desire to make some provision for him so that he would have something in his old age. She also spoke about Lillian Snell, her granddaughter, saying that she was a good little girl and ought to have her share. On August 18, 1930, the decedent executed an instrument as her will at the office of Mr. Sullivan, an attorney in Lynn, who had been
There were conflicting statements as to the decedent’s attitude, not only as to this will of 1930 but also toward her children and grandchild after this will was made. For example, it is said that a year or two before she died, in speaking of the disposition of her property, the decedent said she was leaving the bulk of it to her daughter, son and granddaughter, all to share alike, and that in the spring of 1936 she indicated no change in her disposition and showed the same friendly attitude toward her son and granddaughter. Her interest in her granddaughter increased as the child grew older and continued up to the time of her death. At
Frawley, the son-in-law, although he had lived in the household with the decedent from the date of his marriage in 1926, did not do any of her legal work until about 1932. There was an offer to show that he acted for her from then on in several instances, some of which were important, and the proponent concedes that the decedent relied upon Frawley as her attorney in attending to her affairs. The circumstances leading up to the drawing of the instrument by Frawley in December of 1936 are described almost entirely by counsel for its proponent. The decedent was then ill with a cancer, and she spoke to her daughter about making a new will and asked if her son-in-law would make it, whereupon her daughter replied that he would not and that she had better let Mr. Sullivan make it. The decedent replied that she did not want Mr. Sullivan. There was further talk about the making of the will and Frawley stated that he did not wish to draw it and that the decedent had better get Mr. Sullivan. Finally the decedent insisted that she wanted Frawley to draw it and he consented. She gave him some data concerning the disposition of her property. After he had drawn the instrument, and on the morning of the day of its execution, he took a copy of it to the decedent, and read it over with her. She said, in substance, that it was what she wanted. There was some discussion between the decedent and Mrs. Frawley over the possibility of the son making trouble, whereupon the decedent is alleged to have said, "Well, I’m going to give them enough so they won’t make trouble for you, and if they do make trouble
. The decision of the probate judge adverse to the motion is entitled to weight even though the record discloses everything which was before him. An element of discretion is vested in him which will be given weight on appeal. Hannon v. Gorman, 296 Mass. 437. We are asked to reverse the judge’s order under the authority of cases such as Hayes v. Moulton, 194 Mass. 157, Raposa v. Oliveira, 247 Mass. 188, Tarr v. Vivian, 272 Mass. 150, Bessom v. Bayrd, 282 Mass. 58, and Israel v. Sommer, 292 Mass. 113. But we cannot say that in the circumstances of this case the judge was wrong in denying the motion. The instrument on its face has many of the aspects of a natural disposition of the decedent’s property. Mrs. Frawley, the principal beneficiary, had always stayed at home with her mother. It was represented that during her youth she had worked about the home, attended the store which her mother conducted, delivering the orders when she was hardly able to carry
Order denying motion for issue affirmed.