McLoughlin v. Sheehan

250 Mass. 132 | Mass. | 1924

Rugg, C. J.

This case comes before us on exceptions taken in the Superior Court at the trial of two issues to a jury framed on a petition for the allowance of the will of the late Ellen Moore. The issues related (1) to the soundness of mind of the alleged testatrix and (2) to the procurement of the will through the fraud or undue influence of named persons.

There was no error in the exclusion of testimony to the effect that the witness thought the testatrix was a woman over eighty years of age. It does not appear that this opinion was founded on personal observation. In the bill of exceptions the age of the testatrix is stated as a fact to have been about seventy years at the time of her death. That having appeared, further evidence on so subsidiary a point was irrelevant. In appropriate instances a witness may testify as to the age of another as a deduction from sufficiently specific facts within his own knowledge. Commonwealth v. O’Brien, 134 Mass. 198. Much must be left to the discretion of the trial judge on such a matter.

A witness, asked to narrate a conversation had by her with the testatrix, was unable to fix its date, but it was shown in some other way to have been in February, 1917. On refusal by the trial judge to admit the conversation, the offer was made “ to show that sometime between the years 1917 and 1921,” the testatrix “ appeared at the window of her third story flat ” and said, “ Thank God, the McLoughlins have gone. I will see you.” It is assumed in favor of the contestant that reference was thus made to the persons charged with exercising undue influence. It is stated in the exceptions as a fact that the McLoughlins, from July, 1917, until her death, either lived in the same tenement or in the same house with the testatrix. There was no error in' the exclusion of the question. Construed strictly, the offer of proof was not directed to the time at which the witness had the knowledge. It did not correlate with the question. Hallwood Cash Register Co. v. Prouty, 196 Mass. 313. Construed according to its terms, the offer related to a time subsequent to the execution of the will. Giving to the excepting party the broadest construction of the exception, there was no error. The matter was at best remote from any issue on trial and might well have been excluded in the exercise of sound judicial discretion. The case is distinguishable from Whitney v. Wheeler, 116 Mass. 490.

It appeared in evidence that a conservator of the alleged testatrix was appointed several months before the date of the instrument offered for probate as her last will, and that her property continued to be under a conservator until her death. There were, within the calendar year during which the alleged will was executed, two or three successive adjudications by the Probate Court that the essential facts existed requisite for the appointment of a conservator under the statute (now. G. L. c. 201, § 16), namely, incapacity to care for her property “ by reason of advanced age or mental weakness.” It is stated in the exceptions that the conservator was “ appointed by reason of her advanced age.” The contestants requested a ruling to the effect that these adjudications were evidence that at the date of the making of the alleged will the deceased “ was not of sufficient mental capacity to resist the pressure upon her of strong influence.” This request was not given in the form presented. Instructions were given to the effect that these adjudications had a “ bearing on the question of her mental capacity to dispose of her property by will ” and that, although a person, weakened both in body and mind, might have testamentary capacity, yet it was true that possibly, by reason of being feeble physically and mentally, such person might not have the same power to resist external influences intended to overcome and control the will. It cannot be said that there was error in the instructions given or in the denial of the request. Different people may be affected differently by physical and mental weakness in respect to tendency to yield to influences put forth by others. Natural obstinacy may be accentuated or inherent ductility become greater because of waning strength of body or mind. The adjudications of the Probate Court establishing facts necessary for the appointment of a conservator of the property of the testatrix were entitled to such weight as the jury saw fit to give them in determining the questions of her susceptibility to improper influence and of her soundness of mind. Those adjudications were not decisive but were to be considered in connection with all the other pertinent evidence. That was the substance of the charge. Clifford v. Taylor, 204 Mass. 358. Breed v. Pratt, 18 Pick. 115.

There was no error in the denial of the fifth request. It was in these words: “ If, upon all the evidence, including the usual presumption of sanity, and the effect of the judicial determination of the facts necessary to be proved in order to authorize the Probate Court to appoint a conservator, the jury find that the scales of proof and judgment are in even balance, then the finding of the jury must be for the contestants, since the executor has failed to sustain the burden of proof.” Instruction was given to the effect that there is a presumption that each one is of sound mind and that that presumption stands “ until there is other evidence which may control the presumption.” This was sufficiently favorable to the contestants. Richardson v. Bly, 181 Mass. 97. Duggan v. Bay State Street Railway, 230 Mass. 370, 378. Commonwealth v. DeFrancesco, 248 Mass. 9. See Clifford v. Taylor, 204 Mass. 358, 361.

There is no requirement on the part of the trial judge to use the illustration of the even balance of scales and the inclination of that balance to the one side or the other according to the effect of credible evidencé in charging a jury as to the burden of proof and the weight of evidence. It may be convenient or graphic; it is not essential. The charge by the trial judge was correct and adequate as to the burden of proof resting upon the respective parties touching the two issues on trial.

The jury were instructed that the burden of proof was upon the executor to show that the testatrix was at the time the will was executed of “ sound mind.” That is the statutory description of testamentary capacity. G. L. c. 191, § 1. While not infrequently, in discussing testamentary capacity, the words “ sound and disposing mind and memory ” have been used, it is-sufficient, if correct rulings be given as to what constitutes soundness of mind without adding as a substantive part of testamentary capacity a definition of memory. Fuller v. Sylvia, 240 Mass. 49, 54.

The jury were told in substance that soundness of mind in respect to making a will was sufficient mental capacity to understand the nature of the business in hand, to comprehend in a general way the extent and value of the property to be disposed of, and to realize those persons with whom she had daily relations and those persons who might have some claim on her bounty. This principle was repeated in effect in different forms of words. This is in conformity to numerous decisions. Whitney v. Twombly, 136 Mass. 145, 147. Dunham v. Holmes, 225 Mass. 68, 71.

The charge is not fairly open to the construction that the jury were not told to take into account the testatrix’s capacity to grasp her relations to all who might naturally be regarded by a person in her situation as natural objects of her remembrance, even though the exact phrase of the request was not adopted. It is not essential to testamentary capacity that the one executing a will must under all circumstances remember all the next of kin or presumptive heirs at law, no matter how far separated in time and space from actual personal association.

The charge upon undue influence was adequate and correct. It was in conformity to established principles. Neill v. Brackett, 234 Mass. 367, 369, 370, and cases there collected. Craig v. Lamoureux, [1920] A. C. 349, 356, 357.

Exceptions overruled.