Appeal of Rogers

• Decision Date: 13 March 1924
• Citation: 123 A. 634
• Parties: Appeal of ROGERS. In re DEERING'S WILL.
• Court: Maine Supreme Court

123 A. 634

Appeal of ROGERS. In re DEERING'S WILL.

Supreme Judicial Court of Maine.

March 13, 1924.

Exceptions from Supreme Judicial Court, Sagadahoc County, at Law.

In the matter of the estate of Lydia M. Peering, deceased. Decree for contestants in the probate court, appeal to the supreme court of probate dismissed, and Emma H. Rogers, executrix, excepts. Exceptions sustained.

Argued before CORNISH, C. J., and HANSON, PHILBROOK, DUNN, and DEASY, JJ.

Frank A. Morey, of Lewiston, and Edward W. Bridgham, of Bath, for appellant.

William R. Pattangall, of Augusta, and Walter S. Glidden, of Bath, for appellee.

DUNN, J. After the finding of undue influence, a probate appeal, which sought recognition for instruments as a will and codicil, was dismissed; but the finding lacked the support of evidence.

Lydia M. Deering lived and died at Bath. As far as alienists were concerned it was shown that, in her advanced age, she was affected by a mental disorder. The medical men theorized rather subtly in relation to the type of that disorder. And they differed utterly concerning the growth of the malady. The conclusion of the one was general physiological atrophy, which, coming from causes not clearly understood, and emphasized by the blocking and hardening of the arterial system, unnourished her brain until, when she made the instruments, the capacity to will was destroyed. The probate court so decided. Furthermore that court found undue execution. The other expert deduced that, though the partitions dividing the woman's sense and thought were thinned, yet she made the papers when mind and memory were adequate, when she was Intelligent, perfectly rational, perfectly sane, in the sense that she knew and understood the nature and the consequence of her particular act; that her mind rated higher than one merely competent to function legally. But the question is now foreign to inquiry. The cause therefor is that, in assigning reasons of appeal, it was seen fit to add: Neither instrument was procured by the exerting of undue influence on the mind of her whose hand signed them. The reason was not defined more specifically.

When the appeal came on for trial, certain grandchildren of the decedent continued in effort to upset the documents, because as heirs and kin they held they should have shares of the estate. They did not seriously contend that there was want of proof of proper execution of either of the proposed papers. But they offered resistance to the issue that Mrs. Deering was of sound mind and possessed the testamentary power. And they affirmatively advanced undue influence, which the proponent, this present exceptor, she who was named as executrix, countered. The will, as in convenience it may be called, fell. And the codicil fell too. Unadvised by a jury, the sitting justice determined that the documents were not expressive of Mrs. Deering's—

"voluntary wishes, but were the result of influences and solicitations on the part of those especially benefited, which the testatrix no longer had the mental strength to weigh and withstand."

Thus the trial judge reasoned, and on this basis reached his conclusion that the instruments be vacated and annulled.

The situation ultimately on the probate side, when the essence of every essential in the record has been extracted, may be formulated in this wise: Does any evidence support the decree? Or, as counsel for the contestants well express it, "Is the decision sustained by any credible evidence?" Such, and not that the decree is equivalent to a jury verdict, is the recognized test. Eacott, App't, 95 Me. 522, 50 Atl. 708; Costello v. Tighe, 103 Me. 324, 69 Atl. 269; Palmer App't, 110 Me. 441, 86 Atl. 919; Gower, App't, 113 Me. 156, 93 Atl. 64; Thompson, App't, 116 Me. 473, 102 Atl. 303; Cotting v. Tildon's Estate, 118 Me. 91, 106 Atl. 113 Packard, App't, 120 Me. 556, 115 Atl. 173.

By undue influence in this class of cases is meant influence in connection with the execution of the will and operating at the time the will is made, amounting to moral coercion, destroying free agency, or importunity which could not be resisted, so that the testator, unable to withstand the influence, or too weak to resist it, was constrained to do that which was not his actual will but against it.

Undue influence often closely resembles and is near akin to actual fraud. But strictly speaking it is not synonymous with fraud. In the making of a will, undue influence is exerted where the mind of the nominal maker of the document, in yielding to the dominancy and supervision of another's designing mind, does what otherwise the ostensible actor would not have done. Undue and improper influence, to go a little further, presupposes testamentary capacity. Were there no capacity, there could be no will, and the question of whether or not there was influence would be an idle one. The strength of the person's will, in connection with other facts, may be material in relation to whether an exerted influence became operative, but total incapacity negatives the very suggestion of influence. The influence must arise either from proof or presumption of law. It is never inferred from mere opportunity or interest, though these facts if shown should weigh with other facts. But kindness, entreaty, the offer of inducement to gain the making of a will in one's favor, is legitimate, so long as he who made the will had the free choice to make it or not. And a mother's love, her affection, her desire to reward the dutiful conduct of her child, or the promptings of gratitude may properly actuate the doing of a free and voluntary act, notwithstanding it cuts off the reasonable expectations of others upon the bounty of the one who discarded them; save, to be sure, those rights secured by statute. Where there is understanding, where there is volition, what motived a testator's act, even to pique or hostility, is no matter. So the letters on the law's only too familiar guidepost counsel the passer on his way to this case.

Aged 84 years, always physically frail, frugal, simple in tastes and habits, keenly deploring the loss of the devoted and respected husband some four months dead, infirm or weakened by accident, nervous and depressed, emaciated and restless, thus, with her housekeeper and companion, in that home where the family rallied for many a day, was Mrs. Deering on February 16, 1922—the morrow of the day of her son Frank's burial, and the day of the making of the will.

The Deering was a clannish family. Of boys, as the record shows, there were three: Frank, mentioned before, and Harry and Carroll. Emma was the only daughter. The sons, long since grown to manhood, had living places not far from the old homestead. They were in business with, the father in shipping and shipbuilding. Emma became Mrs. Rogers. Her house was on the same lot as the mother's.

Before the World War the Deerings were of what in these days would he regarded modest means. That war essentially increased business and gains at the Deering Yard. The father was generous with the sons. He gave them freely of the capital stock of the Deering Corporation, and he owned all virtually, and afterward held less than any of his sons; the holdings of two of the sons were coequal. The father not only gave no stock to the daughter, who was a merchant's wife, but he earlier bought back the few shares that once were hers, paying par for them, likely a fair price at the time, but not comparable to the value that was theirs later. In 1916, about five years before he died, Mr. Deering made his will. A rich man, as worldly riches count in Maine, the sole provision for the wife was a bequest of $2,000. Maybe that was mutually...