Cereghino v. Giannone
| Decision Date | 07 January 1924 |
| Parties | CEREGHINO v. GIANNONE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; A. R. Weed, Judge.
In the matter of the estate of Agostino B. Dondero, deceased. Contest of will by Elizabeth Giannone against Emilio Cereghino, executor. The jury found in favor of the will, and contestant brings exceptions. Exceptions overruled.
The contestant made the following requests for rulings:
‘(1) The amount of influence necessary to dominate a mind impaired by age or disease is obviously less than that required to control a strong mind.
‘(2) A discrepancy between the fixed purpose of the testator, expressed in his declared intentions, and the provisions of a will which are favorable to those in close relation to him at the time of its execution, and who have opportunity to unduly influence him, casts upon the beneficiary the burden of showing that the will was not the product of undue influence.
‘(3) Direct proof of fraud and undue influence is not required; all that is necessary to establish these issues is that there be affirmative evidence of facts and circumstances from which their existence and exercise may be reasonably inferred.
‘(4) Direct evidence of fraud or undue influence is rarely obtainable, and the issues are generally determined by inferences drawn from a large number of facts and circumstances, no one of which is of great weight and conclusive when considered alone, but is of some weight when combined with other facts.
‘(5) Secrecy in the execution of the will and suppression by the beneficiaries of the fact of its existence, or the fact that the testator lived with the beneficiary, the presence or absence of the person alleged to have exercised the undue influence at the execution of the will, are proper facts to be considered in connection with other circumstances of the case.
‘(6) Undue influence may be deemed established when there is evidence that the testator's mind has been impaired or weakened by age or disease and the will is inconsistent with a prior intent expressed in his declarations or combined with evidence of an unnatural disposition.’C. H. Frost and A. L. Doggett, both of Boston, for petitioner.
H. W. Packer, of Boston, for respondent.
This case is before us on exceptions taken at a trial in the superior court of an issue framed by the probate court respecting the allowance of an instrument offered for probate as the last will of Agostino B. Dondero. The issue was whether the alleged will was ‘procured to be made by the fraud or undue influence of Angelo Pensa, Angela Pensa, sometimes called Angelina Pensa, and Emilio Cereghino, or any of them, exercised upon the said Agostino B. Dondero.’ The jury found for the proponents. The appellant's exceptions are to the refusal of the presiding judge to give certain rulings requested, to certain parts of his charge, and to the charge in its entirety. They will be considered in that order.
[1] 1. The first request was properly refused. It assumed as a fact that the testator's mind was impaired by age or disease which was not shown to exist; on the other hand, there was much evidence to the contrary. Beckles v. Boston Elevated Railway, 214 Mass. 311, 313, 101 N. E. 145.
[2] 2. The burden of proof was on the contestant to prove affirmatively undue influence; accordingly, the second request was rightly refused.
[3] 3. The third request was properly refused, as it was necessaryto prove fraud and undue influence, not merely by evidence, but by a fair preponderance of the evidence. Boston Safe Deposit & Trust Co. v. Bacon, 229 Mass. 585, 591, 118 N. E. 906.
[4] 4. The fourth request was rightly refused; the court fully and accurately instructed the jury respecting circumstantial evidence, its weight and effect.
[5] 5. The fifth request could not properly have been given, as it assumes facts which were not shown to exist. There was no evidence to show secrecy in the execution of the will or suppression by the beneficiaries of its existence. Millen v. Gulesian, 229 Mass. 27, 118 N. E. 267;Duart v. Simmons, 231 Mass. 313, 321, 121 N. E. 10.
[6] 6. The refusal to give the sixth request was not error. There was no evidence that the testator's mind was impaired or weakened by age or disease at the time the will was executed, nor that he made an unnatural disposition of his property. Besides, if this request had been given, the jury could have found that undue influence had been established, if there was any evidence, however slight, which tended to prove such influence.
[7][8] 7. The judge, in referring to undue influence instructed the jury:
‘It must be proved by...
To continue reading
Request your trial
-
McOuatt v. McOuatt
...exert undue influence upon her husband was wrong, and there was no error in striking out this portion of the report. Cereghino v. Giannone, 247 Mass. 319, 142 N.E. 153;Briggs v. Weston, 294 Mass. 452, 2 N.E.2d 466;Mirick v. Phelps, 297 Mass. 250, 8 N.E.2d 749. We summarize briefly the findi......
-
Petition of Smith
...is the standard required in civil cases in Massachusetts. Grella v. Lewis Whart Co., 211 Mass. 54, 59, 97 N.E. 745; Cereghino v. Giannone, 247 Mass. 319, 323, 142 N.E. 153. See Mishara v. Albion, 341 Mass. 652, 655, 171 N.E.2d 478. See In re Estate of Adams v. Janes, supra, 348 Ill.App. at ......
-
McOuatt v. McOuatt
...did not exert undue influence upon her husband was wrong, and there was no error in striking out this portion of the report. Cereghino v. Giannone, 247 Mass. 319 Briggs v. Weston, 294 Mass. 452 . Mirick v. Phelps, 297 Mass. 250. We summarize briefly the findings of the master. Before her ma......
-
St. Paul Fire & Marine Insurance v. Ellis & Ellis
...the party alleging it." Connolly v. Rochester Shoe Tree Co., 1994 WL 879515 at *2 (Mass. Super. Ct. Nov. 8, 1994) (citing Cereghino v. Giannone, 142 N.E. 153 (1924)). This burden extends to all elements of St. Paul's claim, including damages. Ellis notes correctly that St. Paul did not have......