O'Brien v. Wellesley College

• Decision Date: 03 June 1963
• Parties: James E. O'BRIEN v. WELLESLEY COLLEGE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 879

190 N.E.2d 879

346 Mass. 162

James E. O'BRIEN v. WELLESLEY COLLEGE et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 5, 1963.

Decided June 3, 1963.

Edmund L. Twomey, Boston (Robert W. Emmons, Boston, with him), for contestants Wellesley College and others.

Casper T. Dorfman, Newton (Joseph G. Crane, Boston, with him), for proponent.

Harris I. Baseman, Waban, Charles E. Holly, John E. Rogerson and Philip R. White, Jr., Boston, for sundry contestants.

Before SPALDING, WHITTEMORE, KIRK, SPIEGEL, and REARDON, JJ.

SPIEGEL, Justice.

These are appeals from a decree of the Probate Court allowing an instrument dated September 22, 1960, as the will of Flora L. Eaton, late of Arlington. After a full hearing the judge made a voluntary report of material facts. The evidence is reported.

The judge concluded his report with the following: '1. On all the credible and material evidence as to the execution of the will, I find that the will was properly executed in every respect. 2. On the basis of all the material evidence which I consider credible, I find that not only was there no exercise of undue influence, but the precautions which the witness Jensen took were such as to lead me to conclude as a fact that the * * * [decedent], Mrs. Eaton, clearly acted on her own free will. 3. Evidence was offered by the contestants on the issue of testamentary capacity. To the Court, this presented serious questions of credibility. On the basis of the evidence which the Court considered credible, I find that on September 22, 1960, when the will was executed, Mrs. Eaton had the mental capacity to execute the will in question. In this connection it is only proper to consider the testimony of Dr. Kozol. He was produced by the contestants as an expert on the issue of testamentary capacity. He appeared as a so-called 'percipient witness' who testified that he had heard all the testimony of all the witnesses. I find that as a fact he was not present during the entire trial. I entered a decree allowing the will for probate, from which appeals were duly taken. No request for a report of material facts having been made, I herewith make this voluntary report of material facts.'

The transcript of evidence contains over 700 pages. In view of the report of material facts, hereinafter summarized, we see no point in outlining the voluminous testimony which we have carefully reviewed. The salient facts found by the judge, in addition to those hereinabove related, and culled from his report, are as follows.

The decedent, a widow, died on October 22, 1960, at the age of eighty-nine. She was the mother of two children who died in early childhood. She had a sister who predeceased her by 'some years' and a brother, Benjamin Luther, by 'some 21 months.' The only surviving blood relatives of the decedent are the three children of her sister's deceased son. There was no evidence that any of these children visited or communicated with the decedent from the time of her husband's death in 1928. The decedent was a well-educated woman who had attended Wellesley College but had not graduated therefrom.

From the time of her husband's death until November, 1955, she lived alone in various places except for two brief periods when she had stayed in nursing homes.

On February 11, 1930, the decedent established a living trust, the corpus of which consisted of a number of shares of stock of General Mills, Inc. The Boston Safe Deposit and Trust Company was named trustee. This instrument was amended June 23, 1930, and again on September 24, 1945. On January 26, 1933, the decedent executed a will in which the Boston Safe Deposit and Trust Company was named executor and trustee.

The will presented for probate was executed on September 22, 1960, and named the proponent, James E. O'Brien, as executor. No relative of the decedent who would have been entitled to inherit in the event of intestacy appeared in opposition to the allowance of the will.

O'Brien was in the radio repair business when he first met the decedent in 1938. He had repaired the decedent's radio and shortly thereafter he received a letter of thanks from her for his 'patience and courtesy.' A friendship developed between the decedent and the O'Brien family. In September of 1938 she persuaded O'Brien to go to Venezuela because there were 'opportunities' in South America. She paid his expenses to New York, 'saw him off' on a ship, and gave him a check for $500 'to help defray the expenses of the trip.'

After O'Brien's return from South America their friendship continued. In June of 1949 O'Brien was married to a woman whom the decedent had known for about five years. In June of 1954 the decedent was admitted to the New England Deaconess Hospital suffering from malnutrition. The doctors found no other 'evidence of abnormalities. She was discharged on July 7, 1954, and returned to her apartment in Brookline under the continuing care of her doctor. 'She was being given Thorazine and Serpasil drugs for nervousness.' Her doctor 'called in a psychiatrist who recommended shock treatments.' These were refused by the decedent after consultation with another psychiatrist. No physician saw her from August 20, 1954, until September 23, 1954, when another physician, Dr. Dwight L. Siscoe, was called in by a trust officer of the Boston Safe Deposit and Trust Company. At that time she was 'still frightened and malnourished.' Her landlord was 'urging her to move.' Dr. Siscoe continued prescribing drugs. At this time she was 'oriented in time and place and to the persons around her.' Dr. Siscoe attended the decedent until August 9, 1955. 'On or about November 19, 1954, Dr. Siscoe was contacted by someone at the Boston Safe Deposit and Trust Company suggesting that he examine * * * [the decedent] for the purpose of having the bank appointed as conservator of her property. * * * Doctor Siscoe was presented with a medical certificate completely filled out for his signature.' The decedent signed the petition for the bank to be appointed as her conservator. At that time she had the capacity to understand what she was doing. On November 29, 1954, the bank was appointed conservator. From her Brookline apartment the decedent went to nursing homes were she was visited every two or three days by O'Brien. Subsequently, the decedent told the officers of the bank she would like to live wtih O'Brien in a new house which the O'Briens were going to buy, because they 'would take good care of her.' She was able to discuss the matter of her home intelligently. She made her own decisions even though she was under conservatorship.

In October, 1955, the O'Briens purchased a house in Arlington and the following month the decedent moved in and occupied a second floor suite. She participated in the selection of 'drapes' and curtains and requested the trust officer of the bank to have certain of her household effects, which had been placed in storage, sent to her in Arlington. She 'had the run of the O'Brien house,' and ate most of her meals with the O'Briens as a member of the family until some time late in 1958 when she was confined most of the time to her suite. The decedent received visits from various friends and relatives by marriage until shortly before her death. 'She was able to make herself understood and she was oriented in time, place and to the persons around her until a few days before she died.' In September, 1960, the decedent fell and injured her hip.

On September 19, 1960, in response to a telephone call to the law office of Crane, Inker, and Oteri, a Mr. Richard H. Jensen, employed by the firm as an investigator and clerical assistant, was sent to the home of the decedent 'for the purpose of obtaining information necessary to draft a will.' Mr. Jensen was a law school graduate but was not a member of the bar at that time. Subsequently, however, he became a member of the Massachusetts bar. He had not met the decedent or the O'Briens prior to that date. Mr. Jensen was introduced to the decedent by O'Brien as 'the man who was there to help her make her will.' She told him that she would like to see the O'Briens receive 'all her property as they had been good to her.' She informed him that all her relatives were dead and she had no one who was really close to her. '[W]ithout the use of memorandum, from memory,' she gave Mr. Jensen a list of names and addresses of persons she 'wanted to mention in her will.' Mr. Jensen informed the decedent that 'the will would be prepared and that a member of the law firm would return to have it executed by her and three witnesses.' At this time Mr. Jensen did not know that the decedent had an unrevoked, executed, purported will in the possession of the Boston Safe Deposit and Trust Company, executed in 1933, and modified by a codicil executed in 1945 '[Mr.] Jensen turned the notes he made of * * * [the decedent's] instructions over to one of the senior partners of the firm, for drafting the will and informed the partner of all the facts that he had learned including the fact that * * * [the decedent] was under conservatorship.'

After the will was drawn, Mr. Jensen was directed to oversee the execution of it. On the evening of September 22, 1960, Mr. Jensen saw the decedent and told her that he would read the provisions of the will and if she wanted 'changes to be made to so inform him.' He read the draft of the will to her, paragraph by paragraph. The decedent did not hear some words and required Mr. Jensen to repeat what he had read. 'After re-reading the clause or clauses * * * [the decedent] nodded her head * * * [in] agreement and * * * [said] 'Yes' or 'Uh, Uh." After he had completed the reading of the instrument the decedent assured him that was the way she wanted to leave her property. With the decedent's permission Mr. Jensen then asked the witnesses who were waiting downstairs to read the will. After all the witnesses read the will, he...