322 Mass. 247 | Mass. | 1948
The petitioner appeals from a decree of the Probate Court disallowing an instrument offered for probate as the will of Nellie E. W. Bickford, late of Boston. The case was fully heard on the facts by the judge of probate without having been submitted to a jury. The decree recites findings of fact that the testatrix was not of sound mind and that the execution of the will was procured by undue influence. The evidence is reported.
On the issue of mental competence, although there is a presumption of sanity, the general burden of proof rested upon the petitioner. Clifford v. Taylor, 204 Mass. 358, 361.
The evidence is too voluminous to be stated here in detail. After a careful examination of all of it we can do no more than to indicate in bare outline the salient portions which, if accepted by the trial judge, would, we think, justify his finding that the deceased was not competent to make a will.
The deceased was eighty-three years of age. The alleged will was executed on Tuesday, August 6, 1946. Death occurred four days later on Saturday, August 10. The death record gives the causes of death as pulmonary edema, car-diorenal disease, chronic myocarditis, and chronic nephritis. There is also a “question” of a fracture in the leg, the deceased having fallen three or four days before the alleged will was made. A physician who had treated the deceased in the spring and fall of 1945 and in July, 1946, and who visited her again the day before the alleged will was made, testified that in July he had advised her “in no uncertain terms that she certainly wasn’t able to look after her affairs” and must have someone “appointed” or someone to look after her. He further testified that she was decidedly senile the year before; that on the day before the alleged will
In addition to this not altogether satisfactory medical testimony there was evidence that on Sunday night, two days before the alleged will was made, the deceased, with her consent, was brought to a hospital in Medford, but almost at once insisted upon leaving, was very confused, thought she had been at a meeting of “the D. A. B.” in Portland, Maine, said she had been there ten days and it was time to go home, walked up and down the corridor in spite of her injured leg, banged upon the doors with her cane, struck a nurse with her cane and her hand, and had to be removed from the hospital to the room where she had previously lived and where she continued in an excited state until given a sedative at two o’clock of the morning of the day before the alleged will was executed. There was other evidence of her appearance and conduct shortly before or at about the time of the execution of the alleged will which might be taken to bear upon her mental condition. On the day before the alleged will was made she appeared “dazed,” “confused,” and “stuporous.” About a week before, she telephoned for her cousin to come from New
Testamentary capacity requires ability on the part of the testator to understand and carry in mind, in a general •way, the nature and situation of his property and his relations to those persons who would naturally have some claim to his remembrance. It requires freedom from delusion which is the effect of disease or weakness and which might influence the disposition of his property. And it requires ability at the time of execution of the alleged will to comprehend the nature of the act of making a will. Whitney v. Twombly, 136 Mass. 145, 147, 148. Ronan v. Moroney, 313 Mass. 475. We cannot say that the judge was plainly wrong in giving more weight to the evidence hereinbefore outlined than he did to that of the witnesses to the alleged will or to that of an interested beneficiary under it, and in failing to be convinced that the deceased possessed testamentary capacity. It is clear that the deceased suffered from a complication of serious ailments, and that at least from the time of her brief visit to the Medford hospital, two days before the alleged will was made, until her death, four days after it was made, deterioration was rapid. Very likely a finding the other way would not have been disturbed.
Since in our opinion the actual decree can rest upon the recited finding of lack of testamentary capacity, it is unnecessary to consider the further finding of undue influence. That finding does not enter into the final result of the case.
Decree affirmed.