Becker v. Becker

• Decision Date: 26 April 1921
• Citation: 238 Mass. 362,130 N.E. 843
• Parties: BECKER v. BECKER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

238 Mass. 362

130 N.E. 843

BECKER

v.BECKER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

April 26, 1921.

Exceptions from Superior Court, Suffolk County; J. T. Quinn, Judge.

Proceeding for probate of the will of George Becker, deceased, by Jacob F. Becker, his executor, opposed by William Becker and others, wherein, on appeal, a justice of the Supreme Judicial Court framed and sent two issues to the superior court for answers by a jury, and the executor, after an affirmative answer on the second issue, of fraud or undue influence, filed a motion for new trial on each issue. The presiding judge set aside the answer of the jury to the first issue, as to testator's mental capacity, and refused to set aside the answer of the jury to the second issue, as to fraud and undue influence, and the executor excepts. Exceptions overruled.

Meehan & Donahue, of Boston, for executor.

R. G. Dodge and R. S. Wilkins, both of Boston, for contestants.

PIERCE, J.

In the matter of the will of George Becker, propounded for probate, on appeal a justice of this court framed and sent to the superior court for answers by a jury two issues, as follows:

‘First issue: Was George Becker of sound and disposing mind and memory at the time of the execution of the instrument which is now propounded for probate as his last will?

‘Second issue: Was the instrument propounded for probate as the last will of said George Becker procured to be made by the fraud or undue influence of Jacob F. Becker and Mary Becker, or either of them?’

In the superior court, to the first issue the jury returned the answer ‘No,’ and to the second issue the jury returned the answer ‘Yes.’ No request for rulings was made or refused, and no exceptions were taken to the charge. After the verdict the executor duly filed a motion for a new trial on each issue, for the reason that the answer returned by the jury is against the evidence, the weight of the evidence, is unsupported by the evidence, and is against the law. The presiding judge after a hearing on the motion made the following order:

‘The answer of the jury to the first issue is set aside for the first two reasons set forth in the motion. Executor's motion otherwise denied.

‘To the refusal of the judge to set aside the answer of the jury to the second issue, to the refusal of the judge to allow the executor's motion for a new trial, to the refusal of the judge, having set aside the answer of the jury to the first issue, to set aside the answer to the second issue, the executor duly objected and excepted.’

This exception must be overruled. No question of law is raised for the first time on the motion for a new trial; the assigned reasons present questions which are addressed to the discretion of the presiding judge, which is not subject to the revision of the court unless manifestly wrong. Allen v. Allen, 117 Mass. 27;Dexter v. Codman, 148 Mass. 421, 424, 19 N. E. 517;Dunster v. Goward, 221 Mass. 339, 108 N. E. 1085;Berggren v. Mutual Life Ins. Co., 231 Mass. 173, 176, 120 N. E. 402.

During the trial, the contestants framed a hypothetical question; and on the assumption of the truth of the facts stated asked a witness who qualified as an expert and specialist in mental and nervous diseases, first directing his attention to the 30th day of August, 1919, which was the day of the execution of the will and six weeks and one day before the death of the testator:

‘What is your opinion as to whether his mind at that time was in a normal condition?’

As a ‘preliminary question’ the presiding judge permitted the question, and subject to the exception of the executor the witness replied: ‘It was not in a normal condition.’ The entire testimony of the expert fairly imports that he intended by the answer only to say...