302 Mass. 366 | Mass. | 1939
The executor named in and proponent of an instrument purporting to be the will of Olesime Viens, a widow who died December 6, 1936, at the age of eighty-five years and whose only heirs were her three sons Abraham, Wilfrid and Henry, appeals from a decree of the
No evidence is reported, but upon request under G. L. (Ter. Ed.) c. 215, § 11, the judge made a finding of material facts. The decree cannot be affirmed unless the facts stated show its correctness. Topor v. Topor, 287 Mass. 473. Birnbaum v. Pamoukis, 301 Mass. 559, 561-562. The contestants have the burden of proving undue influence. Bacon v. Bacon, 181 Mass. 18, 21. Briggs v. Weston, 294 Mass. 452, 460. Mirick v. Phelps, 297 Mass. 250, 252.
These in substance are the facts found. The estate consists principally of three different houses and land. All had been the property of the husband of Olesime Viens. He had died intestate in 1920. The three sons conveyed their interests in the property to their mother, upon her promise that at her death it should be divided among them equally. Each had contributed to the purchase of the property while they lived with their father and mother, Abraham less than the others because -he had married early and moved away. In recent years all three sons occupied tenements upon the property, Wilfrid and Henry paying no rent because repeated assurances were given by their mother to them and to other persons as late as 1932, that each should have one of the houses as his own. In reliance upon those assurances Wilfrid made repairs and improvements. Apparently Abraham too paid no rent, for after his father’s death he undertook the management of the property, and his mother lived with him. At some time the mother complained to Wilfrid and Henry about the conduct of Abraham, who, she said, drank and did not pay over the rents. She expressed fear that Abraham would waste his inheritance. He and his wife stopped working in 1930. The mother was always on good terms with Wilfrid and Henry.
The facts found show an aged woman, owning property upon which her three sons had strong moral claims, recognized by her, to equality of succession, living in fear of her son Abraham with whom she made her home for the last sixteen years of her life. He took active steps to prevent his brothers from talking with his mother alone. It could be found that through his wife he took steps to prevent his mother from changing her will. We think that an inference that the instrument was obtained by his undue influence was proper, although the subsidiary facts are not as strong as in many cases. Neill v. Brackett, 234 Mass. 367. Raposa v. Oliveira, 247 Mass. 188. Eddy v. Eddy, 281 Mass. 156. Mirick v. Phelps, 297 Mass. 250. Smith v. Stratton, ante, 17. Old Colony Trust Co. v. Yonge, ante, 49.
Decree affirmed.