300 Mass. 350 | Mass. | 1938
The petition alleges that the respondent Margaret MacNeil, hereinafter called the respondent, caused the petitioner’s testator, Michael L. McDonald, while he was "incapable of understanding the effect of his acts,” to assign to the respondent a savings bank deposit "by false representations, duress, deceit and fraud.” The nature of the evidence throughout the trial indicates that the petitioner’s claim rests upon what is generally designated "undue influence” rather than upon the less subtle forms of “duress, deceit and fraud” which those words commonly suggest. See Wellman v. Carter, 286 Mass. 237, 253. But it is too late after trial to make a point of this, even if the petition does not quite charge undue influence with technical accuracy. That undue influence is commonly fraud in the larger sense has frequently been recognized and stated. Whitcomb v. Whitcomb, 205 Mass. 310. Costello v. Hayes, 249 Mass. 349, 355. And it also partakes of the nature of duress. Freeman v. Teeling, 290 Mass. 93, 95, and cases cited. The proof now falls within the broad sweep of the allegation, even if at the outset the petition might have been demurrable for lack of particularity. Fleming v. Dane, 298 Mass. 216, 218. Arena v. Brier, ante, 144, 145-146. Mason v. Daly, 117 Mass. 403, 406. Whiteside v. Merchants National Bank, 284 Mass. 165, 169.
The real question in the case is whether the finding that the assignment of the deposit was obtained by undue influence — a finding implied in the decree for the petitioner in the absence of express findings of fact — can stand. As the evidence is reported, it is our duty to decide the entire case, although weight is to be given to the findings of the trial judge as to facts, and they are not to be set aside unless plainly wrong. Comstock v. Bowles, 295 Mass. 250, 253-254, and cases cited.
In 1934 Michael L. McDonald was a man about eighty-
• From this point on it is possible, we think, to take two widely divergent views of the evidence. According to the view which it would.seem that the judge must in substance have adopted it could have been found that the respondent soon made herself a material if not an indispensable factor to the comfort of an old man, bowed with grief, whose health, memory and hearing had begun to fail; that he looked to her for the continuance of the home to which he still tenaciously clung; that she almost at once manifested an excessive curiosity as to his property and income and his
According to the opposing view, it could have been found that McDonald’s children, or some of them, were jealous of the respondent from the start and made her position so difficult that she offered to withdraw, as she had a perfect right to do; but that he replied that she had come to him in his “darkest hour” and had taken “the lump out of his throat,” and that he was grateful. It could have been found that, being in good health for a man of his age and in the full possession of his faculties, he voluntarily persuaded her to remain by offering to make her his “partner” in the bank deposit if she would stay as long as he lived; and that she agreed to do this and faithfully performed her undertaking.
As between these two contentions we are unable to say
As to the respondent’s requests for rulings, which the judge received and acted Upon, whether or not they are technically before us (see Stoneham Five Cents Savings Bank v. Johnson, 295 Mass. 390, 393), it is enough to say that the principle by which one who accepts a beneficial interest under a will is estopped to set up any claim of his own in opposition to any part of that will (Hyde v. Baldwin, 17 Pick. 303, 308) has no application here. Other requests which have been argued either relate only to fragments of the evidence not in themselves presenting separate issues (Barnes v. Berkshire Street Railway, 281 Mass. 47, 50-52) or would require a ruling as matter of law that the transfer of the deposit was valid. In any event there was no error in denying them.
Decree affirmed.