Barr v. Warren

Decision Date27 December 1937
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

November 9, 1936.

Present: RUGG, C.


Probate Court, Jury issues. Undue Influence. Unsound Mind.

No error appeared in the denial of a jury issue as to undue influence in the making of a reasonable will, substantially the same as a prior will, providing for next of kin and neighbors who had been kind and friendly to the testator, with only negligible provision for next of kin with whom he was not on intimate or friendly terms.

The denial of a jury issue as to testamentary capacity of a man over ninety years of age was not error where a statement of expected evidence by the contestant's counsel, contradicted in many particulars by the statement by the proponent's counsel, disclosed only infirmities and eccentricities which in themselves did not require the framing of the issue, and opinion testimony by alienists, who had never seen him, that the testator was of unsound mind.

PETITION, filed in the Probate Court for the county of Middlesex on December 23 1935, for proof of the will of George A. Warren, late of Concord.

Motions for jury issues were denied by Leggat, J. The contestants appealed.

M. J. Cohen, (J.

P. Cassidy with him,) for the appellants.

H. R. Bygrave, (J.

W. Byron with him,) for the petitioner.

DONAHUE, J. These are appeals from an order of a judge of probate denying motions for the framing of issues for a trial by jury concerning an instrument dated July 3, 1934, offered for probate as the last will and testament of George A. Warren of Concord. The proposed issues which are argued relate to the soundness of mind of the decedent and to undue influence. The case was heard on statements made by counsel of the respective parties as to the evidence which they expected to offer if there should be a jury trial.

The principles of law governing cases like this are well settled and have often been stated. Fuller v. Sylvia, 240 Mass. 49 , 53. Cranston v. Hallock, 281 Mass. 182 , 183, 184, and cases cited. Mirick v. Phelps, 297 Mass. 250 . We need not here restate those principles, but we have them in mind in considering the statements as to anticipated evidence made by counsel in the present case.

The decedent on July 3, 1934, a year and a half before his death at the age of ninety-three, executed the instrument offered for probate. No question is now raised as to its due execution. Its provisions were not substantially different from those of an earlier will. The disposition of his property made by the decedent in the instrument in question does not appear, in the circumstances shown, to be abnormal or to give support to the contentions that he was unduly influenced or of unsound mind when he executed it.

It provided for the contestants, a brother and a nephew, two of his four next of kin, legacies of only negligible value. But the brother, who had lived in Florida for many years, and the nephew, who resided in California, were not on intimate or friendly terms with the decedent. No contention to the contrary is made by the contestants. Since a quarrel between the brother and the decedent as to the administration of their father's estate thirty years before, their relations had been unfriendly. The nephew had neither seen nor communicated with the decedent for thirty years.

The value of the property left by the decedent was over $60,000. The instrument in question gave a substantial part of his estate to two of his next of kin, a sister and a nephew. They visited him regularly and there was a normal, friendly family relationship between them. To a cousin of the deceased wife of the decedent, who had at times kept house for him the instrument gave a legacy of a savings bank deposit and made a devise of the home where he lived. What was given to his wife's cousin was substantially what the decedent had received from his wife's estate.

The instrument named as its executor the decedent's nearest neighbor Joseph Barr. It gave to him a legacy of a savings bank deposit and devised to him a strip of land twelve feet wide which apparently provided a needed means of access to the Barr home. It also provided legacies of savings bank deposits for Barr's wife and young daughter. Since the death of the decedent's wife, Barr and his wife frequently provided him with meals and were solicitous of his welfare, and ministered to him when he was ill. He often manifested his appreciation and his fondness for the Barr family. They were good neighbors and close friends. The contestants make no assertions to the contrary. We think that the statement of anticipated evidence...

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