Appeal of Latham

• Decision Date: 22 November 1917
• Citation: 102 A. 295,116 Me. 624
• Parties: Appeal of LATHAM.
• Court: Maine Supreme Court

102 A. 295

116 Me. 624

Appeal of LATHAM.

Supreme Judicial Court of Maine.

Nov. 22, 1917.

Appeal from Supreme Judicial Court, Androscoggin County, at Law.

Appeal of Sarah A. Latham from decree of judge of probate, allowing will. There was verdict against will in the supreme court of probate, and proponents move in the Supreme Judicial Court to set aside verdict, and for new trial. Motion overruled.

Argued before CORNISH, C. J., and KING, BIRD, HALEY, and MADIGAN, JJ.

McGillicuddy & Morey and L. J. Brann, all of Lewiston, for appellant.

J. G. Chabot and Newell & Woodside, all of Lewiston, for pro-ponents.

PER CURIAM. This is an appeal from a decree of the judge of probate approving and allowing the last will and testament of Cain Latham. In the supreme court of probate the jury found, upon the two issues of fact submitted to them: First, that the testator was not of sound mind at the time he executed the instrument which purports to be his last will and testament; and, second, that the testator was induced to make and execute said instrument by undue influence. The case comes before us on a motion to set aside the verdict.

The evidence as reported embraces 460 pages. No exceptions are presented to any rulings of the presiding justices as to the admission or exclusive of evidence, or to his instructions to the jury.

The testator at the time of his death, March 29, 1916, was between 65 and 70 years of age. He was born in England, and came to this country about 30 years before his death and settled in Lewiston, Me. His wife and children came soon after. He worked in the cotton mills until about 8 years before his death, when he retired from that work and thereafter took orders for wall paper from samples.

The petition for the probate of the will in question recites that his estate does not exceed $5,450, of which $500 is real estate, and $450 personal estate. All his children, five in number, are living. The oldest, Mary (01-lerenshaw), 44 years old at time of trial, was married at the age of 19, and has since lived in Lewiston. William, 41 years old at time of trial, an operative in the cotton mills, is unmarried, and has always lived at home with his parents. David, 39 years old, was married at the age of 23, and moved to Lowell, Mass., where he how resides. Sarah, 33 years old, an operative in the cotton mills, is unmarried and has always lived at home. Ernest, 29 years old, was unmarried at the time of his father's death. He is a painter, and lived at home, until recently.

January 31, 1912, Cain Latham made a will, therein giving his wife the use and income of all his estate for the term of her life. Of the remainder of his estate, after his wife's death, he gave to his son David $100, to each of David's two children $100, to his daughter Mary and her only child $100 each, and all the rest of his estate he gave to William Ernest, and Sarah, equally, saying in the will:

"These three children are made the residuary legatees because they have especially aided me in accumulating my property."

The testator's wife died July 2, 1914. Soon after that, on the 21st of the same July, he sailed for England on a visit. He reached Lewiston on his return, September 23, 1914. His three children, William, Ernest, and Sarah, went to Massachusetts to meet him on the arrival of the steamer, but, owing to the miscalculation as to the time, they did not meet him, and he arrived home in their absence. His visit was apparently disappointing, and he returned home tired, weak, sick, and dejected in spirit, at least.

It is conceded that before Mr. Latham took the trip to England he was of sound mind, possessing ample testamentary capacity. And we think the evidence justifies the conclusion that after his return home he appeared changed in both body and mind.

After he had been at home three or four weeks he began taking his meals with his daughter Mary, his daughter Sarah then going to work in the mill, but he slept at his home, as did the three children, Ernest, William, and Sarah. He continued to take his meals with Mary, paying her therefor, until a few days before his death.

On the 9th day of November, 1914, the testator executed the instrument in question. It is therein provided that the child of his daughter Mary should receive $200, that each of the two sons of David should receive $100, and that the rest of his estate should be equally divided among his five children, if all should be living...