Capper v. Capper

• Decision Date: 13 December 1898
• Parties: CAPPER v. CAPPER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

172 Mass. 262

52 N.E. 98

CAPPER v. CAPPER.

Supreme Judicial Court of Massachusetts, Suffolk.

December 13, 1898

The following is the evidence at the trial:

"Porter F. Capper, the appellant, testified that he was a plumber and learned his trade with his father; that his brother Fred H. Capper, had suffered constantly with mental trouble, so that he had to be sent away for treatment; that the relations between Porter and his father and mother were pleasant; that he was waiting upon a girl, and Fred talked about it, and brought up troubles about it at the table. After the marriage, Fred said that Porter's wife 'was a God-damned stinking Catholic bitch.' Fred threatened his father if he should leave any money to Porter, and said he would have his life. The father was on excellent terms with Porter's wife after the marriage and used to visit Porter at the latter's home, in Malden, about four to six times during the summer time. He said he was afraid to let Fred know he visited Porter; it riled him up so. After Porter's marriage, while he was working in Littleton, N.H., he was sick once, and his mother came up to see him, and wanted him to come home. He went home, and his father received him affectionately. The affectionate relation between Porter and his father continued to his death. He heard his brother, Fred threaten the father three or four times that, if he left him (Porter) anything in his will, he would do him violence. Once Fred came to Porter with a paper in Fred's handwriting, in the form of a will, containing the same bequests contained in the will offered for probate, and said, 'I have got things fixed; put that in your pipe, and smoke it.' Porter afterwards showed it to his father, and spoke to him about it. The father said that he did not mean anything; that he only did it to pacify his brother. He said there would not be any division like that made; that it should be equally divided; and that there was plenty of property for both. The paper in question was dated 27th of October, 1890, and the will was made December 14, 1890. Porter once asked his father how he was going to leave things, and the father said Fred was at him all the time to get things his way. His mother died August 29, 1890. After the mother's death, he noticed a change in his father, in his memory and ability to grasp things. His father was 72 at his death. Mary F. Brooks testified, on behalf of the appellant, that she knew Thomas H. Capper for 16 years, and met him often. After the death of his wife, she met him, and had a conversation with him. He said that he was very much broken up after the long sickness and death of his wife; that Fred was troubling him about the property; that it was a wrong thing to make a will and give the property to one son; that Fred threatened him often, every day, about making the property over to him; also, that Fred would give him a good deal of trouble; and that he wished he was dead. Mrs. Margaret T. Capper testified that she was the wife of Porter F. Capper; that she had called at the father's house before and after his wife's death. Thomas H. Capper used to come to see her while she was living in Malden. He came a short time after his wife's death, and said to her that he had to steal away to come over to her house, and that he did not want his son to know about his visiting her. He spoke about his son making so much bother about the property that he wished he was out of the way and dead. He said that Fred was urging him to make a will, but he said he would never do it; that it belonged as much to Porter as it did to Fred. Once when he came to her house, he said he was going to Bass Point, and that time he brought a lunch with him. She offered him a bouquet of nasturtiums to take home, but he said he would not take it home because he was afraid of Fred. Once when she was in the father's house, she was playing the piano; and Fred told the old gentleman to close the piano, as he did not wish her to be there, and the old gentleman closed it immediately. Frank F. Fay testified, on behalf of the appellant, that he was a plumber, and worked for Thomas H. Capper for eight years. He was working there when Mrs. Capper died. After the death of Mrs. Capper, he heard conversations between Thomas H. Capper and Fred Capper. Fred said to his father that he should have all the property, or he would have his (Porter Capper's) blood. This was six or eight months after the wife's death. The father said to Fred that he should divide it equal among the boys. He said, 'Fred, there is enough for both of you.' Fred used to become violent. Thomas H. Capper told him he was getting tired of business, and he felt like closing up the doors, and giving up the business; that he was tired of life. The father said that he was troubled by Fred. Fred wanted to get all the property after the wife's death. Porter Capper and his father were on the best of terms just before his death. He was in Thomas H. Capper's employ at the time. He never heard Mr. Thomas H. Capper say anything in regard to his property or either of his sons before his wife's death. He heard Mr. Capper say that Porter was his favorite son; that he had done the work there; and that he should have part of it. He said this to Fred Capper. He had seen Fred Capper violent, so that he jumped at him, and tried to throw him over. This was while Fred was in charge of a nurse. He heard Fred say that he wanted the property, and heard him say it every time he was in there for a week,--once or twice a day. Helen Ray testified, on behalf of the appellant, that she knew Thomas H. Capper for 15 years, and lived in his house for 3 or 4 years. Mr. Capper regarded his son Porter well. After Mrs. Capper's death, Mr. Capper did not appear as usual. He did not have any interest in anything. He told her

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