Flynn v. Cunningham

• Decision Date: 02 March 1923
• Parties: FLYNN v. CUNNINGHAM et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

244 Mass. 306

138 N.E. 392

FLYNN

v.CUNNINGHAM et al.

Supreme Judicial Court of Massachusetts, Middlesex.

March 2, 1923.

Exceptions from Superior Court, Middlesex County; George A. Flynn, Judge.

Petition by Joseph B. Flynn for the probate of the alleged last will of John A. Cunningham, deceased, opposed by Henry J. Cunningham and others. Verdict for the contestants, and petitioner brings exceptions. Exceptions overruled.

The will sought to be probated, which was executed about a month before testator's death at the age of 66, gave a majority of the stock of the Cunningham Drug Company in trust to pay the testator's sisters each $1,000 annually, and the remainder of the dividends to Flynn, and directed that upon the death of both sisters, or at the expiration of five years, Flynn should be given an option to buy the stock, and also expressed the desire that Flynn should be continued as manager of the business of the drug company. The case was tried on issues framed by the probate court for trial by jury as to whether deceased, at the time of the execution of the will, was of sound mind, and whether its execution was procured through fraud or undue influence of Flynn. Petitioner requested instructions that on all the evidence the issue whether deceased was of unsound mind must be answered in the negative, that the issue of undue influence must be answered in the negative, and that there was no evidence on which the jury could find that the instrument was procured by fraud or undue influence. Such instructions were refused, and the jury answered the first issue ‘No’ and the second issue ‘Yes.’

Forest F. Collier, of Boston, for petitioner.

Mullin, Beatey & Spain and John P. Manning, Jr., all of Boston, for respondents.

DE COURCY, J.

John A. Cunningham, of Cambridge, died January 14, 1922, and an instrument dated December 7, 1921, was offered for probate, as his last will. The probate court framed jury issues as to his soundness of mind and as to the alleged fraud and undue influence of the petitioner in procuring the execution of the will, and a trial thereof in the superior court resulted in findings in favor of the contestants on both issues. The only question raised by the exceptions is whether the presiding judge was warranted by the evidence in submitting the issues to the jury.

1. As to whether John A. Cunningham was of sound mind on December 7, 1921: On the evidence most favorable to the contestants the jury could find the following facts: The testator was 66 years of age. He had incorporated his business as the Cunningham Drug Company, capitalized at $20,000, and owned 1,750 of the 2,000 shares. Prior to August, 1921, he was a vigorous and active business man. Thereafter he declined rapidly; his eyesight failed, so that by October 15 he was unable to read; his memory became impaired to the extent that he forgot the prices of standard articles in the store; he fell asleep in his office chair, and was unable to grasp the meaning of what was said to him. After he took to his bed he failed to recognize his brother; suspected his sister, Mrs. O'Donnell, of trying to poison him; talked disconnectedly and grasped at imaginary things. More than a week before he died he fell into a semicomatose condition. His disease was cancer of the stomach, and...