Brignati v. Medenwald

• Decision Date: 06 March 1944
• Citation: 315 Mass. 636,53 N.E.2d 673
• Parties: EMMA FLORENCE BRIGNATI v. ALICE L. MEDENWALD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

315 Mass. 636

53 N.E.2d 673

EMMA FLORENCE BRIGNATI v. ALICE L. MEDENWALD.

Supreme Judicial Court of Massachusetts, Essex.

March 6, 1944

November 12, 1942.

Present: FIELD, C.

J., DONAHUE, QUA & RONAN, JJ.

Undue Influence. Will, Validity. Actionable Tort. Practice, Civil, Ordering verdict.

Irrespective of whether any action relating to an alleged will had been sought or been had in a Probate Court, an action of tort could not be maintained by the decedent's sole heir and next of kin, who by the provisions of the instrument was not given any part of the estate, against one who was alleged to have procured the making of the instrument by the exercise of undue influence.

An exception by the plaintiff to the ordering of a verdict for the defendant after the opening statement of counsel for the plaintiff was overruled, where the bill of exceptions did not show what was stated in the opening and the declaration did not set forth a cause of action.

TORT. Writ in the Superior Court dated February 5, 1940. The case was heard by Warner, J. In this court it was submitted on briefs.

J. B. Bagdoian, for the plaintiff. J. H. O'Neil, for the defendant.

RONAN, J. This is an action of tort. The third count of the declaration, with which we are now concerned, alleges that the plaintiff was the only child and heir of Chester H. Janvrin; that "she had a claim to his remembrance, to his bounty, and was entitled to inherit the estate of her said father, through the natural course of events; that the defendant, during the last year of her father's life, kept her father in the defendant's home and while her father was in the defendant's home as aforesaid, denied the plaintiff and other relatives of the late Chester H. Janvrin from seeing him; that the defendant exercised undue and improper influence on him; that the defendant talked to the plaintiff's father against the plaintiff and so influenced the mind of the said father as to cause the father to be under the delusion that his only daughter was against him and unfriendly to him and thus caused the father to make a will favorable to the defendant and unfavorable to the plaintiff and thus deprived the plaintiff, his only daughter, who had a natural claim to his bounty, of all benefits of her father's estate all to her great damage as alleged in her writ." After the plaintiff's counsel had made an opening to the jury, the judge, subject to the plaintiff's exception directed the jury to return a verdict for the defendant on the ground that the count did not set forth a legal cause of action.

We do not know what counsel said to the jury in his opening remarks. If his opening statement demonstrated that he intended to offer evidence which, if believed, would constitute a cause of action, he could have requested an opportunity to amend the count, but the record does not show that he sought an amendment. Energy Electric Co., petitioner, 262 Mass. 534. Gray v. Boston, 277 Mass. 166 . Urban v. Central Massachusetts Electric Co. 301 Mass. 519 . And notwithstanding any action that might previously have been taken by some other judge sustaining the sufficiency of the count as a pleading, Peterson v. Hopson, 306 Mass 597 , the judge hearing the case on the merits could direct a verdict for the defendant if the facts alleged or offered in proof did not constitute a cause of action. Oulighan v Butler, 189 Mass. 287 , 289. Murphy v. Russell, 202 Mass. 480 , 481. Mitchell v. Lonergan, 285 Mass. 266 , 271.

The wrong complained of is the procurement of a will in the defendant's favor by the exercise of undue influence upon the plaintiff's father, which the plaintiff alleges resulted in depriving her of "all benefits of her father's estate." The instrument executed by her father could not have transferred any of the estate to the defendant or deprived the plaintiff of any part of the estate unless it had been admitted to probate. G. L. (Ter. Ed.) c. 191, Section 7. Solis v. Williams, 205 Mass. 350 , 355. The only method provided by our law for the ascertainment of the validity of an instrument purporting to be the last will of a resident decedent is by a decree of the Probate Court for the county in which the decedent was domiciled at the time of his death, Kennedy v. Simmons, 308 Mass. 431; Slater v. Munroe,

313 Mass. 538 , and the allowance or disallowance of the instrument as a will is final and...