Abbott v. Noel

• Decision Date: 05 March 1958
• Parties: Albert B. ABBOTT v. Herbert T. NOEL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 377

148 N.E.2d 377

337 Mass. 133

Albert B. ABBOTT v. Herbert T. NOEL.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 5, 1958.

Decided March 5, 1958.

George M. Poland, Boston (Lyman C. Sprague, Boston, with him), for proponent.

Harry M. Lack, Boston, for contestant, submitted a brief.

Before WILKINS, C. J., and SPALDING, WILLIAMS, COUNIHAN and CUTTER, JJ.

SPALDING, Justice.

Mary A. Benson, late of Reading, died September 29, 1955. An instrument purporting to be her last will, dated January 1, 1955, was presented for probate by Albert B. Abbott, who was named therein as executor. Herbert T. Noel, who was the principal beneficiary under a purported will of an earlier date, contested the allowance of the later instrument, and, upon his motion, the judge of probate ordered jury issues to be framed on (1) the testamentary capacity of the decedent and (2) whether the execution of the alleged will was 'procured to be made by the fraud or undue influence of Emma S. Abbott and Albert B. Abbott or any of them, exercised upon the said Mary A. Benson.' From this order the proponent appealed.

The motion was heard on statements by counsel of expected evidence. Counsel for the contestant stated that Mary A. Benson died at the age of seventy-eight. She was a widow and for many years had resided at the Reading Inn. Sometime in 1953, she became friendly with the contestant who also resided in Reading. He would take her out for rides, and 'do many things that she would ask him to do.' Sometime in 1953, Mrs. Benson asked Mr. Nigro, an attorney practising in Reading, to draw a will for her and he did so. By this will, which was executed in Mr. Nigro's office sometime in May, she gave all of her property, with the exception of a burial lot, to the contestant. Mr. Nigro next saw Mrs. Benson sometime in July, 1954, in these circumstances. Receiving a telephone message from the contestant stating that Mrs. Benson wanted to see him, Mr. Nigro went to the Cotton Nursing Home (where Mrs. Benson was then living) and was informed that she could not be seen for a while. After waiting an hour and a half he was about to leave when the proponent entered. The proprietress of the home then told Mr. Nigro that he could see Mrs. Benson, whereupon he and the proponent went into her room. Mr. Nigro realized that she had 'failed considerably,' as she did not recognize him until told who he was. She then asked him 'more or less screaming or hysterical' to take her out of the home. Mr. Nigro was of opinion that, except to locate her closest relative, there was nothing he could do, and left.

In October, after locating a cousin of Mrs. Benson, Mr. Nigro filed a petition for the appointment of a conservator for her, but learned that the proponent had been appointed conservator in July, 1954. In January, 1955, while under conservatorship, Mrs. Benson executed the instrument offered for probate by the proponent in which, except for three small legacies, she left all of her property to Emma Abbott, a sister of the proponent. Up to the time that the proponent 'came into the picture' he was no more than a mere acquaintance of Mrs. Benson and from then on 'he would not allow anyone [including the contestant] to be near her' unless he was present.

The contestant further proposed to show by persons who took care of Mrs. Benson that she was very forgetful and 'wouldn't know anyone's name five minutes after she saw them.' She would 'get hysterical * * * [and scream], and it was a difficult job trying to take care of her from July, 1954, until she died.' Just prior to the execution of the will and shortly thereafter 'she didn't know what she was doing,' where she was, and 'what her family consisted of.'

There was other expected evidence stated by the contestant touching alleged irregularities of the proponent in his dealing with Mrs. Benson's property as conservator. But this proposed evidence is very vague and would seem to have little or no relevancy to the issues under consideration. We, therefore, do not recite it.

The statement of counsel for the proponent was as follows: During the many years that Mrs. Benson resided at the Reading Inn Emma Abbott, the principal beneficiary under the instrument offered for probate, was employed there as a cook. She prepared special dishes for her and often acted as her attendant. Toward the end of her stay at the inn Mrs. Benson required additional care and this was furnished by Miss Abbott. In June, Mrs. Benson, upon advice of her physician, Dr. Baisley, entered the Cotton Nursing Home. Dr. Baisley was of opinion that Mrs. Benson should be relieved of her financial cares, and the proponent, upon his petition, was appointed her conservator. The petition was assented to by Mrs. Benson and Dr. Baisley executed a certificate to the effect that the appointment of a conservator for Mrs. Benson was necessary and that she was of sufficient mentality to understand what she had done in connection with the petition. The proponent had known Mrs. Benson for many years and since 1947 had prepared her income tax returns. She consulted him about her investments. The proponent and his sister were Mrs. Benson's 'nearest' friends and she had confidence in them. Mrs. Benson kept a diary and many instances of helpful service by Miss Abbott are recorded in it. The contestant, aged fifty-two, once lived at the Reading Inn. He frequently visited Mrs. Benson while she was there. He was a heavy drinker and sometimes he was so drunk that Mrs. Benson was obliged to call upon the police to remove him. Numerous diary entries show that the contestant, while intoxicated, visited Mrs. Benson and she frequently sent him home. In many of the entries Mrs. Benson stated that these visits upset her. Having found the earlier instrument in which the contestant was the chief beneficiary, the proponent brought this to Mrs. Benson's attention and she disclaimed having made it and stated that she did not want the contestant to 'have her property as he would drink it up.'

One Fowler, who was in the real estate business in Reading and managed the inn property, at the proponent's request visited Mrs. Benson at the nursing home and asked her 'what she wanted to do in the matter of a will.' She repeated what she had said to the proponent about not knowing that she had made a will in the contestant's favor and that she did not want him to have her property. Fowler asked her if she had a lawyer and she said her husband had had a lawyer named Rufus Sprague. Fowler told her that there was a lawyer in Reading named...