Dunster v. Goward

• Decision Date: 22 May 1915
• Citation: 221 Mass. 339,108 N.E. 1085
• Parties: DUNSTER et al. v. GOWARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

221 Mass. 339

108 N.E. 1085

DUNSTER et al. v. GOWARD.

Supreme Judicial Court of Massachusetts, Plymouth.

May 22, 1915

COUNSEL

Robt. O. Harris, of Boston, and Harry C. Curtis, of Providence, R L., for appellant.

A. F Barker, of Brockton, and James C. Collins and R. H. Gladding both of Providence, R. I., for appellees.

OPINION

PIERCE J.

The evidence in favor of the validity of the will and against the assertion of fraud and undue influence was substantial and required the submission of the issues to the jury. The contestant has not argued otherwise, but asserts his right, under a request for a directed verdict, to bring all the evidence before the superior court to this court for review of facts as well as law.

There is no authority in this commonwealth for such procedure. Crocker v. Crocker, 188 Mass. 16, 73 N.E. 1068. A submission of issues of fact to be tried by a jury is expressly authorized. R. L. c. 159, §§ 36, 38; Id. c. 162, § 25. In the case at bar the jury found, upon consideration of the submitted issues of fact, that the testator at the time of the execution of the will was of sound, disposing mind and memory, and also that the will was not procured by the undue influence or fraud of Sarah J. Burns and Henry Dunster, or either of them.

These findings are conclusive upon parties and upon this court until set aside, for good cause shown, by the trial judge in the exercise of his discretion, or by this court because of error of law. Franklin v. Greene, 2 Allen, 519, 522; Perry v. Shedd, 159 Mass. 200, 34 N.E. 174; Crocker v. Crocker, 188 Mass. 16, 73 N.E. 1068. In view of the undisputed record facts the judge well might have granted a new trial; but it also was given to him to see the witnesses and to hear their testimony, and we have no power to revise his judgment. Capper v. Capper, 172 Mass. 262, 52 N.E. 98; Ingalls v. Oliver, 198 Mass. 345, 84 N.E. 462. The contestant has not specifically argued upon her brief any exception taken to the charge, to the refusal to charge, or to the allowance of the cross-examination of the contestant as to the amount, kind and location of her property; therefore these exceptions might be treated as waived (Bacon v. Bacon, 181 Mass. 18, 62 N.E. 990, 92 Am. St. Rep. 397); but we prefer to pass judgment upon them.

The testator, before executing his will, and in the will itself gave as a reason for omitting to make a devise or bequest to the contestant the alleged...