194 Mass. 157 | Mass. | 1907
The questions argued in this case arise upon the refusal of the judge to give certain instructions that were specifically asked for by the respondents. There was doubtless a great body of evidence which called for serious consideration by the jury upon the question whether Mrs. West’s will was procured through the fraud or undue influence of Mrs. Hayes, the only beneficiary thereof; but if this question was answered wrongly by the verdict, the respondents’ only redress is by application to the judge for a new trial for that reason. Aiken v.
The eleventh request could not have been given in the form asked for. The fact that a will differs from the previously expressed purpose of the testatrix, or from what it would have been if, besides being in full possesssion of her faculties, she had acted under independent advice, does not require it to be set aside. She had the right to change her mind and to select her own advisers. And the jury were sufficiently told that the will could not be sustained unless the petitioner proved that the testatrix was of sound and disposing mind and memory.
The fourteenth, seventeenth, nineteenth, twentieth, twenty-second, twenty-third, twenty-fourth, twenty-fifth and twenty-seventh requests are all objectionable, and the judge was not required to give them. Some of them assumed the truth of facts which were in dispute; most of them were attempts to put arguments for the respondents’ contentions into the mouth of the judge, by calling upon him to charge so as to emphasize certain portions of the evidence. All of them were obnoxious to one or both of these objections. Both fraud and undue influence were sufficiently defined and explained in what was said to the jury.
All the contentions of the respondents mentioned in the eighteenth request were sufficiently explained to the jury; and it was made plain to them that they might infer the existence of undue influence from the facts mentioned in this request, if they found these facts to be proved and chose to draw such an inference. This was as far as it was the duty of the judge to go. Woodbury v. Woodbury, 141 Mass. 329. Banfield v. Whipple, 14 Allen, 13, 14.
It would not have helped the jury to state to them the abstract proposition of law contained in the twelfth request. It is true of course, as argued by the respondents, that a person may have sufficient capacity to make a will if let alone and yet not be of sufficient capacity to resist the pressure upon him of strong influence; and the question whether the use of such influence is lawful or not often may depend, and perhaps in this case did depend, upon the condition of mind and body of the person upon whom it is exercised. Dexter v. Codman, 148 Mass. 421, 424.
As to the twenty-first request, it is enough to say that a judge has not the right to tell a jury that the testimony of a witness is open to the gravest doubt. R. L. c. 173, § 80. Commonwealth v. Barry, 9 Allen, 276, 278.
Nor ought the twenty-sixth request to have been given in terms. It was a question for the jury to determine whether and how far there was a relation of trust and confidence between Mrs. Hayes and the testatrix. If the jury found this fact to be as contended by the respondents, it would be a material circumstance for them to consider, and they would be warranted in saying that the will should not be sustained without proof to their entire satisfaction that it did express the real intentions of the deceased. Jones v. Simpson, 171 Mass. 474, 477. Davenport v. Johnson, 182 Mass. 269. But this is a very different proposition from that which was asked for by the respondents.
No exception was taken to any of the instructions given ; but only the refusal to give the instructions which have been mentioned was excepted to. If the respondents feared that the language used by the judge might be taken in a broader sense than they deemed consistent with the law, they should have called his attention to the matter. McKee v. Tourtellotte, 167 Mass. 69, 72.
Exceptions overruled.