Appeal of O'Brien

• Decision Date: 12 April 1905
• Citation: 100 Me. 156,60 A. 880
• Parties: Appeal of O'BRIEN. In re CAMPBELL'S WILL.
• Court: Maine Supreme Court

60 A. 880

100 Me. 156

Appeal of O'BRIEN. In re CAMPBELL'S WILL.

Supreme Judicial Court of Maine.

April 12, 1905.

Appeal from Supreme Judicial Court, Knox County.

Proceedings for the probate of the will of Mary E. Campbell, deceased. In the appellate court a jury trial was had, and the Jury rendered a verdict in favor of the proponent of the will, and thereupon the contestant filed a general motion for a new trial. Motion overruled.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, SAVAGE, and POWERS, JJ.

C. E. & A. S. Littlefield, and R. I. Thompson, for appellant. Heath & Andrews and M. A. Johnson, for appellee.

WISWELL, C. J. This is an appeal from a decree of the probate court of Knox county admitting to probate the will of Mary E. Campbell. Upon the trial in the supreme court of probate three issues were submitted to the jury—as to whether the testatrix knew the contents of the instrument purporting to be her will, whether she had testamentary capacity, and whether in making the will she was unduly influenced. The jury answered all of these questions in favor of the proponent of the will, and the case comes here upon the contestant's motion for a new trial. In the argument before the law court counsel for contestant abandoned the other issues, and relies wholly upon the allegation of undue influence. In fact, the testamentary capacity of Mrs. Campbell has been admitted in the stipulation signed by the counsel.

Before stating and discussing the facts, it may be well to formulate a statement of what is and what is not undue influence which will vitiate a will, so far as this subject may be applicable to the facts of the case. False statements of material facts and deception may be eliminated from the discussion, since there is no evidence to show that any fraud of this nature was practiced upon the testatrix. Mere advice, suggestions, reasons, or arguments addressed to the judgment of a person who is contemplating making a will, and which are intelligently considered and adopted by such person, do not constitute undue influence; nor does importunity even, and persuasion, if the testator has sufficient mental capacity and strength of will to properly weigh and consider them and to resist them, unless adopted by him in the free exercise of his judgment and volition. Upon the other hand, whatever may be the nature and extent of the influence, if, because of the physical or mental weakness of the testator, and the nature and persistency of the influence exerted, it is such that the testator is unable to resist it, if it deprives him of his power to act as a free agent in the manner that he otherwise would, it is sufficient to avoid the will, because a will made under such circumstances is not the will, and does not carry out the wishes, of a capable testator, acting as a free agent. It follows that the true test is to be found not so much in the nature and extent of the influence exercised as in the effect that such influence has upon the person who is making his will.

Whatever the nature and extent of the influence exercised, if in fact it is sufficient to overcome the volition and free agency of the testator, so that he does that which is not in accordance with the dictates of his own judgment and wish, and what he would not have done except for the influence exerted, it is undue influence. But the mere fact that arguments and suggestions are adopted by a testator, and his will, on that account, is different from what it otherwise would have been, is not sufficient. It necessarily depends upon the further question as to whether such advice or suggestions are intelligently and freely adopted, because they have appealed to the judgment of the testator, so as to become in accordance with his own desires, or whether because of the persistency of the importunity, or for any other reason, the testator is unable to resist, and finally yields, not because of the voluntary action of his own judgment, but because, on account of the strength of the influence, or the weakness of his own judgment and will, he cannot resist longer. It is undoubtedly true, as has been argued, that in some cases it may be very difficult to determine whether a suggestion has been thus freely adopted, or has been merely followed by the testator because it has overcome his free agency; but it is none the less the true and decisive question, and must be determined as well as possible in each case from all the facts and circumstances of the case. The citation of authorities in support of these statements of the rule is unnecessary, because such authorities are so exceedingly numerous.

We come now to the consideration of the facts of this case, many of which are unquestioned, and the most of which are uncontradicted. The person who is claimed to have exercised an undue influence over Mrs. Campbell was one William G. Starrett, who was named as executor in the will, and who was largely benefited by some of its provisions. It becomes necessary in the first instance to state fully, but as briefly as the case will admit, Mr. Starrett's connection with the making of the will, his previous relations with Mrs. Campbell, as well as those that existed at the time, and what influence he did in fact exert over her as to any of the provisions of the will in question.

The will was executed on the 31st day of October, 1900. The husband of Mrs. Campbell had died on the 1st day of that month. At that time Starrett was living in Massachusetts, in the vicinity of Boston. Mrs. Campbell and Starrett were second cousins: her mother and his father were cousins. About the middle of September prior to Mr. Campbell's death on the 1st day of October Mrs. Campbell wrote to Starrett, telling him of the serious condition of her husband's health, and requesting him to come to Thomaston, if possible, as there might be business of importance about which she desired to see him. In response to this letter and to a telegram of similar effect, he arrived in Thomaston on September 14th, and stayed until the 24th, during which time he had various interviews with both Mr. and Mrs. Campbell, but did not talk with Mr. Campbell about business affairs. Mrs. Campbell told him during this visit that in case of her husband's death she should want him to manage and settle his property and business affairs. After having left Thomaston for his home on the 24th, he received a telegram on the 1st day of October announcing Mr. Campbell's death, and at once returned to Thomaston.

Going back to the previous acquaintance between Starrett and Mr. and Mrs. Campbell and their relations with each other, we find that Starrett, when he was 21 years of age, went into the employment of Mr. Campbell as a clerk in the latter's store, and remained there for a period of two years. In 1870 he went into the employment of Mrs. Campbell's father, Edward O'Brien, who was then conducting a business in Boston under the firm name of R. G. Morse & Co. He remained in that employment until 1888, and after an absence of four years went back in 1892. Edward O'Brien had previously died, and Mrs. Campbell and her brother, Edward E. O'Brien, were carrying on the business. From 1892 Starrett had charge of the Boston business until 1899, when it was closed out, and the property sold. During that time Edward E. O'Brien, as a member of the firm of Burgess. O'Brien & Co. failed and made an assignment, and the Boston business was thereafter carried on by Starrett under a power of attorney from Mrs. Campbell, Edward O'Brien, and the latter's assignee. It does not appear that Starrett had any business relations with Mr. or Mrs. Campbell prior to the death of Mr. Campbell, except to have charge of the Boston business in which she was interested, and except that he had a sum of money in his hands, belonging to her, for investment. But the Campbells were on quite friendly terms with both Mr. Starrett and his wife. They occasionally corresponded, and the Campbells would occasionally visit the Starretts when they were in Boston.

After the funeral of Mr. Campbell, Starrett stayed in Thomaston during the month of October, devoting considerable of his time to the business affairs and property matters of Mr. Campbell. On the 10th of October Mrs. Campbell first mentioned to Starrett the subject of the disposition of her own property. In relation to this conversation his testimony is as follows: "She said that she wished to make some disposition of her property; that she did not wish any of it to go to Edward E. O'Brien; and, while she hadn't decided just what disposition to make of it, she wanted me to advise her under the circumstances, and I advised her to make a will." Starrett further says in this connection that he has an impression that it would be legally necessary to mention her brother's name in the will, and so told her, and that she desired him to ascertain if this was true by consulting a lawyer. This he did, and upon the 24th day of October, or before that, informed her that he had ascertained that this would not be necessary. Between the 24th day of October and the day of the execution of the will there were numerous interviews and conversations between them as to various bequests. Mrs. Campbell desired that great secrecy should be maintained as to the provisions of the will, and did not even want the scrivener who drew portions of the will, and who advised in regard to its form, to know its contents. Upon this account Starrett would frequently go to the office of L. F. Starrett, a counselor at law, with an office at Rockland, obtain from him drafts of different clauses of the will, take them to Mrs. Campbell, and submit them to her for approval or modification. While this work of preparation was going on in this manner, and after Mrs. Campbell had given the names of numerous beneficiaries, she said to him upon one occasion, and, as he says, without the slightest suggestion from him upon the subject, ...