Old Colony Trust Co. v. Bailey

202 Mass. 283 | Mass. | 1909

Knowlton, C. J.

This is an "appeal from a decree of the Probate Court, allowing the will of Martha E. Bailey, deceased.

After a verdict upon an issue framed for a jury had been set aside as against the evidence, an additional issue was framed, numbered two, which, as afterwards amended and submitted to the jury, was as follows : “ Was the instrument propounded for probate as the last will and testament of Martha E. Bailey procured to be executed in whole or in part by the undue influence of Frederick W. Webber, and if in part, what part?” To this issue the jury subsequently answered, “ Yes, that all the bequests made in favor of Dr. Frederick W. Webber, mentioned in clauses number eleven, number sixteen and number seventeen be stricken from the will of Martha E. Bailey.” The first issue, as to whether the whole will was procured by undue influence, they answered in the negative.

The second issue was framed because the first trial suggested the question whether a part of the will might not have been procured by undue influence, while the larger part of it was a valid expression of the desire of the testatrix. Dr. Webber, referred to in the issue, and the Boston Home for Incurables, another legatee named in the will, as well as the executor and the appellant, were heard by the justice on the framing of this issue, and there was no appeal from the order, and no exception was taken. It having been intimated subsequently, at the trial before another justice, that only the executor and appellant had any standing to be heard as parties, and up to this time no request having been made by others to participate in the trial, the counsel for Dr. Webber, while Dr. Webber was under cross-examination as a witness, claimed a right in his behalf to take a part in the trial. At first his claim was refused, and he took an exception. But very quickly, before the examination of Dr. Webber had proceeded much further, the justice told him that he might participate in the trial as fully as he pleased, and might argue the case to the jury if he desired. Thereafter he took part in the trial so far as he desired, and argued the case to the jury. He did not request the recall of any witness.

At the conclusion of the contestant’s testimony, and again at . the conclusion of all the evidence, he asked the justice to withdraw the second issue from the jury, on the ground that no testimony had been offered to prove that any particular part of the will had been procured. by the fraud or undue influence of Frederick W. Webber, and that the testimony had been offered to prove that the whole will had been so procured. This request was not founded on any contention that the issue was not properly framed originally, or that, upon proper evidence, the will might not be found to be procured by fraud in part and to be good in other parts. That this may be so found seems to be generally held by the courts, although it has never been distinctly decided in this Commonwealth. Trimlestown v. D’Alton, 1 Dow & Cl. 85. Allen v. M’Pherson, 1 H. L. Cas. 191, 209. Harrison’s Appeal, 48 Conn. 202. Rockwell’s Appeal, 54 Conn. 119. Morris v. Stokes, 21 Ga. 552. Eastis v. Montgomery, 93 Ala. 293, 299. Steadman v. Steadman, 10 Sad. (Penn.) 539. See Wms. Ex. (10th ed.) 291. 1 Jarm. Wills, (6th ed.) 37. Woerner, Law of Administration, (2d ed.) § 222. Decisions in this State assume or imply that this is the law. O’Connell v. Dow, 182 Mass. 541, 552. Ogden v. Grreenleaf, 143 Mass. 349. Wills have been proved in this Commonwealth to take effect in part and to be void in part. Reane v. Littlefield, 1 Pick. 239. Holman v. Perry, 4 Met. 492. Heath v. Withington, 6 Cush. 497.

Considered in reference to the evidence to which it was directed, this request was without foundation. There was evidence in the circumstances to indicate that the other bequests contained nothing to lead to the belief that Dr. Webber prompted them. This request was rightly refused.

The request to instruct the jury that the party seeking to set aside this will on the ground of undue influence must prove that an influence was exercised “ which constrained her (the testatrix) to do that which was contrary to her will and desire, but which she was unable to refuse to do,” was fully covered by the language of the charge.

Dr. Webber’s counsel excepted to this part of the charge: “If you should find as you have listened to this evidence, that the getting of the trust deed was simply another act of undue influence, that is not the question at all. It is whether or not her condition of mind when she gave that trust deed to him, and because she gave it, is evidence tending to show a like condition of mind when she made the will. That is to say, having once got control of her mind, was it a permanent condition ? ” The sentence at the end of this quotation evidently was not an accurate expression of what was in the justice’s mind. The will was made before the testatrix made the trust deed to Dr. Webber.

But the subject was afterwards discussed at length by the justice, this part of the charge covering nearly two printed quarto pages, and with such general clearness of expression as to show that the jury could not have misunderstood the proper application of this evidence. The inaccuracy of expression in a single sentence was cured by what was said before and afterwards.

The exceptions of Dr. Webber are overruled.

The appellant filed a bill of exceptions on another ground.

He contended that it was an error in law to permit Dr. Webber and the Boston Home for Incurables to participate in the trial, and he excepted to the order of the presiding justice allowing it.

It is true, as the appellant contends, that a petition for the probate of a will is a proceeding in rem. Bonnemort v. Grill, 167 Mass. 338. McKenna v. McArdle, 191 Mass. 96. It is also true, as a general rule, that the interests of legatees claiming under a will are properly and sufficiently represented by the executor, and, notwithstanding the dictum to the contrary in Eliot v. Eliot, 10 Allen, 357, 359, individual legatees are not entitled as of right to appear separately and become parties to a petition for the probate of a will. The representation of the estate and the conduct of the trial usually should be left to the executor. But if it appears that one legatee has important interests adverse to those of the legatees generally, or if for any reason, under the issues submitted to the jury, there are contentions that ought to be made in support of the will which are adverse to other contentions that ought to be made in support of some part of the will, it is in the discretion of the presiding justice to allow parties differently interested to appear and be heard in support of their respective contentions. In the present case the two issues presented such conditions. The executor was willing that these two legatees, whose interests were to a certain extent antagonistic, should be heard in support of their respective views. Indeed, in this court the executor’s counsel was so far in doubt as to what action he should take as between the adverse contentions of these two legatees in regard to the substantive matters in dispute between them, that he presented no argument in regard to them. While we are of opinion that, as a rule, individual legatees should not be permitted to be heard in behalf of their personal interests in a proceeding of this kind, we think that, in the present case, the discretion of the court was wisely exercised. See O ’ Connell v. Dow, 182 Mass. 541. This exception must be overruled.

The only other exception of the appellant is to the refusal of the presiding justice to give the twelfth and thirteenth rulings requested by the appellant. The first of these called for an instruction to the jury as to the effect that might be given to a part of the evidence, in reference to a possible view that might be taken of it in its bearing upon the general question to which it related. It has often been decided that a judge cannot be required to select a part of the testimony bearing upon a question, and to suggest what effect it may have, by itself alone, in some possible view that the jury may take of it. Shaw v. Tompson, 105 Mass. 345, 350. Delaney v. Hall, 130 Mass. 524. Bugbee v. Kendricken, 132 Mass. 340. Hicks v. New York, New Haven, Hartford Railroad, 164 Mass. 424, 428. Henderson v. Raymond Syndicate, 183 Mass. 443, 447. Lakeside Manuf. Co. v. Worcester, 186 Mass. 552, 559. The thirteenth request was given in substance, although not in the same language, in the charge.

Exceptions overruled.