Aldrich v. Aldrich

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: [102 N.E. 489] BRALEY, J.
• Citation: Aldrich v. Aldrich, 102 N.E. 487, 215 Mass. 164 (Mass. 1913)
• Decision Date: 02 June 1913
• Parties: ALDRICH v. ALDRICH.

215 Mass. 164

102 N.E. 487

ALDRICH v. ALDRICH.

Supreme Judicial Court of Massachusetts, Suffolk.

June 2, 1913

SYLLABUS

The case was brought on the following issues: '(1) Was the will purported to be executed by C. T. Aldrich made through the fraud or undue influence of Susan H. Aldrich? (2) Was the instrument now offered for probate revoked or canceled by testator? The jury answered both questions in the negative. There was evidence introduced by Henry A. Aldrich tending to show the exercise of undue influence by Susan H. Aldrich and to show an established hostility on her part against him, commencing prior to the date of her marriage to testator and continuing up to the date of the will, and from that time down to the date of testator's death. There was also evidence offered by proponent tending to show a high regard and affection on the part of testator toward his wife, Susan H. Aldrich, and that the provisions of the will represented the testator's known attitude toward his children, based on relations which had existed toward them, rather than on any undue influence exercised by the wife. Proponent, though in court, did not testify. On that subject, the court charged as follows:

'Now I am asked to call your attention to the fact that Mrs. Aldrich, who is, I believe, the petitioner for the probate of the will, and who is the person charged with having exercised undue influence, has not taken the stand to testify. It is a principle of law that if one party to a controversy has evidence in his or her possession which would throw light--which would probably throw light--upon the controversy and fails to produce that evidence, or fails to take the stand, or fails to call the witness, an inference may be drawn that if that witness were called or that testimony produced it would not be helpful to the side which that person is supporting. That is a general principle of law. It applies to all parties to a controversy. If there was a witness known to one side who was unknown to the other until the trial, and the existence of that witness was developed during the trial, the fact that that witness had not been called by the person who knew of his existence would furnish a proper instance for the application of that rule. In this case you have to consider, however, that Mrs. Aldrich was known as a witness at the very beginning of this controversy, because the very issue which this respondent makes is that she exercised the undue influence, and this respondent had a right to call her as a witness if he wanted to and examine her himself and ask her all about this undue influence--what the relations were between her and her husband; and it is for you to consider whether under these circumstances the fact that Mrs. Aldrich has not taken the stand should be regarded as a circumstance weighing in her favor or against her, because she was equally well known to both parties when the controversy first started; it was equally within the power of both parties to the controversy to call her. Of course if she had been called by the respondent she would have been an daverse witness, but she could have been cross-examined; that is, she could have been asked questions which, if she were an indifferent witness could not be asked her.'

COUNSEL

Wm J. Brown, of Providence, R. I., for contestant.

M. M. Taylor, of Worcester (C. B. Perry, of Worcester, on the brief), for respondent.

OPINION

BRALEY, J.

The testator, while he did not overlook his son, gave the appellant only a nominal pecuniary legacy. It was contended at the trial that the will was procured through the undue influence of the executrix, the testator's wife by a second marriage, and he offered evidence, which was excluded that in his presence some 12 years previous to the execution of the will, upon being charged by his mother, the first wife of the testator, with illicit relations, neither of the implicated parties denied their guilt. The will undoubtedly is largely beneficial to the widow, and if the jury believed this evidence a feeling of hostility on her part may have been engendered which if opportunity offered might have induced her to persuade the testator to discriminate unjustly against his son. A wife, however, lawfully may urge her husband to make a will in her favor, and the exceptions do not purport to recite all the evidence. It often happens that no direct proof of undue influence can be produced. It must be established by proof of circumstances. The evidence offered might have been admissible as tending to show the testator's mental status if some foundation had been laid. Shailer v. Bumstead, 99 Mass. 112, 121. But if subsequent expressions of hostility were introduced, which continued to the date of the will, and the testator's death, no evidence appears of efforts on her part to induce him substantially to disinherit the appellant, and to make a will in her favor. The undisputed facts only showed the contents of the will, and that the executrix and principal legatee was the second wife of the testator, who married her in about a year after the death of his first wife and mother of his children. But of themselves these facts did not prove undue influence. Maynard v. Tyler, 168 Mass. 107, 114, 46 N.E. 413. The circumstances of each case are so varied that a rigid or uniform rule cannot be laid down, and how far evidence of this description should be admitted must be left very largely to the discretion of the presiding judge, who has all the evidence before him. The period in the present case seems to have been so remote that the exclusion of the testimony cannot be deemed improper or unfounded. Jenkins v. Weston, 200 Mass. 488, 86 N.E. 955; Howes v. Colburn, 165 Mass. 385, 43 N.E. 125.

The person alleged to have exercised undue influence, even if a beneficiary, is not an adverse party, and such person may be called as a witness either by the executor or contestant, and the failure of the proponent, although present during the trial, to give evidence in support of the will which she was required to offer for probate, or to deny the accusations of the appellant, did not convert her silence into an inference of fact, to be drawn by the jury, that if she had testified her testimony would have been prejudicial to its validity. Shailer v. Bumstead, 99 Mass. 127; McConnell v. Wildes, 153 Mass. 487, 26 N.E. 1114; Old Colony Trust Co. v. Wallace, 212 Mass. 335, 98 N.E. 1035. The instructions requested on this point were properly refused, and those given were unexceptionable in so far as they went, although they well might have gone farther. Jones v. Boston & Northern St. Ry., 211 Mass. 552, 555, 98 N.E. 506.

It is declared by the testator in the beginning of the instrument that it is his 'last will and testament.' But this is not conclusive, and the second issue presented the question whether it had not been revoked or canceled by the testator. A will under R. L. c. 135, § 8, cannot 'be revoked except by burning, tearing, canceling or obliterating it with the intention of revoking it by the testator himself or by a person in his presence and by his direction, or by some other writing signed, attested and subscribed in the same manner as a will, or by subsequent changes in the condition or circumstances of the testator from which a revocation is implied by law.' It is only the clause, 'signed attested and subscribed in the same manner as a will,' upon which the appellant relies. If revocation were shown, he was not required to prove the provisions of a later will which could not be offered for probate. Wallis v. Wallis, 114 Mass. 510. See Tarbell v. Forbes, 177 Mass. 238, 243, 58 N.E. 873; Williams v. Williams, 142 Mass. 515, 8 N.E. 424. It does not seem to have been disputed that subsequent wills were prepared under his direction and...