Bemis v. Andrews

• Decision Date: 28 October 1932
• Parties: BEMIS v. ANDREWS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

280 Mass. 409

182 N.E. 816

BEMIS

v.ANDREWS et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Oct. 28, 1932.

Appeal from Probate Court, Middlesex County; Arthur E. Beane, Special Judge.

Application by James E. Bemis, opposed by Donald V. Andrews and others, for the probate of the will of Herbert L. Andrews, deceased. From an order denying the issue as to the procurement of the execution of the will by fraud or undue influence, contestants appeal.

Affirmed.

P. J. Delaney and R. T. Delaney, both of Cambridge, for appellants.

M. E. Nash, of Framingham, for appellee.

RUGG, C. J.

An instrument purporting to be the last will and testament of Herbert L. Andrews, signed by him in 1922 when he was fifty-one years old, has been offered for probate. In 1920 his wife had obtained from him a decree of divorce wherein she was given the custody of their two children. When the instrument now offered for probate was signed in 1922 the children were still minors, the son apparently being about twenty and the daughter eighteen years old. The purported will gave legacies of $25 each to the children, nothing to his mother then seventy-three years old, and all the rest and residue of his estate, amounting at the time of his death in 1931 to more than $6,000, to his uncle, James E. Bemis, who was about eight or nine years older than the decedent. The children as contestants filed a motion in the Probate Court for the framing of jury issues as to the execution of the instrument in question, as to the decedent's mental capacity and as to fraud or undue influence on the part of Bemis. The motion was heard in the Probate Court solely on oral statements of expected proof by counsel for Bemis who was named as executor and by counsel for the children. The motion was denied without findings of fact or rulings of law and the case comes before us on a stenographic transcript of the statements of counsel. In this court the contestants waived so much of the motion as presents the issue as to mental capacity.

The signature of the decedent to the instrument is not disputed. The contention of the contestants is that through the fraud or undue influence of Bemis the instrument gives the residue of the estate to Bemis in his own right and not to him as trustee for the children.

The record discloses no statements of expected proof to show error in the denial of the issue as to the formal execution of the will. The only question requiring discussion is whether the denial of the issue as to the procurement of the execution of the instrument by the fraud or undue influence of Bemis ought to be reversed.

The governing principles of law as to the framing of jury issues under the present statutes are settled. They need not be repeated. Fuller v. Sylvia, 240 Mass. 49, 53, 133 N. E. 384;New England Trust Co. v. Folsom, 268 Mass. 342, 167 N. E. 665;Sheppard v. Olney, 271 Mass. 424, 426, 171 N. E. 447.

The statements as to the expected testimony of certain witnesses as made by counsel for the contestants were not necessarily inconsistent with deliberate purpose on the part of the decedent to make the testamentary disposition shown in the instrumment offered for probate. According to such statements it was the intention of the decedent in substance to give his property to Bemis as trustee with wide...