324 Mass. 685 | Mass. | 1949
In proceedings on a petition for proof of the alleged will of Anna I. Damon, late of Holden, the contestants moved for the framing of an issue whether the execution of paragraphs 8, 13, and 14 of the alleged will had been procured by the fraud or undue influence of Miles Mooney. The judge entered an order which, as it appears in the record, is equivocal and contradictory in terms, but which all parties interpret as a denial of the motion. We accept their interpretation. The contestants appeal. The evidence is not reported.
The alleged will gives twelve legacies to various persons, of which six are for $1,000, five for $500, and one of an antique desk'. The eighth paragraph is a legacy of $1,000 to Mr. Mooney, the petitioner. The thirteenth paragraph is a residuary clause giving the entire residue to Mr. Mooney “absolutely ... to his own use.” Then follows this provision, “I suggest but do not require that he use the same or so much thereof as to him may seem appropriate for such uses and purposes as I have and may from time to time communicate to him, but without any restrictions or accounting in respect thereto.” The fourteenth paragraph appoints Mr. Mooney executor with full power to sell real or personal property and to compromise or settle all claims against or in favor of the estate.
The judge made a report of the material facts under G. L. (Ter. Ed.) c. 215, § 11, as amended by St. 1947, c. 365, § 3. The facts found are in substance these: ■ The decedent was ninety-three years old. She “lived by herself.” In 1940 she retained Mr. Mooney, who was an attorney at law, to draft a will. In preparing that will he saw her twice. That will bequeathed $1,000 to Mjr. Mooney. “Subsequently” the decedent made at least four other wills. In the spring of 1946, at her request, communicated to him through a nephew, Mr. Mooney visited her in relation to drafting the alleged will now propounded for probate. She had not
In the absence of the evidence it must be assumed that there was evidence to support the findings, and it must also be assumed that the judge’s report of material facts constituted the entire basis on which he denied the motion. Topor v. Topor, 287 Mass. 473, 476. Matter of Loeb, 315 Mass. 191, 195. Vergnani v. Vergnani, 321 Mass. 703. And specific findings control general conclusions, if there is inconsistency between them. Colby v. Callahan, 311 Mass. 727. We think it fairly inferable from the findings that the decedent had no independent advice. At any rate, the petitioner has failed to show that she had. Barnum v. Fay, 320 Mass. 177, 181. The petition for proof of will mentions two grandnieces as the heirs at law and next of kin, although the findings refer to “a nephew” as if a nephew of the deceased were meant. The docket entries show a special administrator’s inventory of $14,485.17. There is nothing in reference to real estate, and the judge’s findings do not disclose the value of the real estate, if there was any. The legacies, without the desk, amount to $8,500, including the one to Mr. Mooney.
In our opinion the specific findings and the inferences we draw from them require that the issue be framed for the jury.
Where an attorney at law who is not himself a relative of the deceased draws a will for a client of advanced years who leaves near kindred, and where the attorney himself attends
There is no difficulty in separating the eighth, thirteenth, and fourteenth paragraphs from the remainder of the will and in framing an issue applicable to these paragraphs alone. These are the only paragraphs by which Mr. Mooney would benefit. Old Colony Trust Co. v. Bailey, 202 Mass. 283, 288-289. Fuller v. Sylvia, 240 Mass. 49, 55. Wellman v. Carter, 286 Mass. 237, 250.
The order denying the contestants’ motion for the framing for jury trial of the issue whether the eighth, thirteenth,
So ordered.