Wellock v. Marsh, 277 Mass. 416

Wellock v. Marsh

277 Mass. 416 | Mass. | 1931

Sanderson, J.

This is an appeal, by the executor named in the instrument propounded as the will of Frances *417P. Wellock, from a decree ordering that the issue, whether the deceased was of sound mind at the time of the execution of the instrument propounded as her last will, be submitted to the jury. The instrument was executed on August 16, 1927. By its terms, a legacy of $50 was to go to each of her daughters and in each case the statement was added that the daughter was otherwise well provided for. The daughters were also given her clothing if they cared for it. Her son, if he survived her, was to have her house and land and all personal property in the house except the oil paintings and other pictures, which were to go to him for life and at his death to be divided equally between, her daughters. Provision was made for establishing a trust for the benefit of her son of all moneys remaining on deposit in the banks, for the payment of $500 from the money in banks to the “Gov John A Andrew Home Association,” and for the division at the death of her son between two named charities of any moneys held in trust. The instrument also provided that in the event that her son did not survive the deceased all of her property with certain exceptions should be equally divided between the two named charities.

The evidence upon which the judge acted was presented in the form of offers of proof by counsel for the respective parties.

When the test of mental capacity to make a will, as stated in Whitney v. Twombly, 136 Mass. 145, 147, is considered in connection with the rule by which the judge of probate is to be guided in deciding whether issues should be framed, as stated in Fuller v. Sylvia, 240 Mass. 49, 53, and especially upon the testimony to the effect that the contestants submitted the facts concerning the life and medical history of their mother to a medical expert and that he wrote to the attorney for the contestants that he had considered the facts as stated by the attorney and believed that accepting them as true Mrs. Wellock did not have testamentary capacity, that from the statement presented she suffered from a chronic mental state, chiefly distinguished by delusions and hostility unwarrantably *418directed against others, especially against her daughters, “Therefore she could not appreciate the nature of the claims they had upon her bounty,” we cannot say that the judge erred in framing the issue as to the soundness of the mind of Frances P. Wellock when she executed the instrument offered for probate as her will, notwithstanding the fact that much of the evidence offered related to matters occurring many years before the alleged will was executed. We do not undertake to say that all of this evidence would be competent at a trial. We assume the facts stated in the offer of proof by the contestants were fairly presented to the medical expert. The case is controlled in principle by Daly v. Hussey, 275 Mass. 28.

Order allowing motion affirmed.