In re Moran's Will

• Decision Date: 08 September 1942
• Citation: 28 A.2d 239
• Parties: In re MORAN'S WILL. Appeal of FLOOD et al. Appeal of GARTLAND et al. Appeal of WRIGHT et al.
• Court: Maine Supreme Court

28 A.2d 239

In re MORAN'S WILL. Appeal of FLOOD et al. Appeal of GARTLAND et al. Appeal of WRIGHT et al.

Supreme Judicial Court of Maine.

Sept. 8, 1942.

Exceptions from Superior Court, York County; Raymond Fellows, Judge.

Proceedings in the matter of the estate of Michael J. Moran, deceased, for the probate of decedent's will contested by Ellen Flood and others. From a decree allowing the will, contestants appeal and bring exceptions.

Exceptions overruled, decree affirmed and case remanded.

Before STURGIS, C. J., and THAXTER, HUDSON, MANSER, and MURCHIE, JJ.

Titcomb & Siddall, of Sanford, and Daniel E. Crowley, of Biddeford, for appellants Ellen Flood, Annie Renick, Peter Gartland, and Bernard Flood.

Willard & Willard, of Sanford, for Ethel Wright and Marion G. Wright.

Thomas F. Sullivan, of Biddeford, for James A. Gartland.

Louis B. Lausier and William P. Donahue, both of Biddeford, for appellee.

MANSER, Justice.

These cases come forward on exceptions to the decree of the Supreme Court of Probate allowing the will of Michael J. Moran, and further exceptions as to restrictions upon admission of two exhibits offered by contestants. The will was contested upon the grounds of lack of testamentary capacity and of undue influence.

Michael J. Moran was a native of Biddeford, Maine, where he lived during his entire life. He died March 14, 1941, at the age of approximately seventy-three years. The will admitted to probate was dated November 14, 1940, and revoked a former one made September 17, 1937, in which two of the contestants, Ethel Wright and Marion A. Wright, second cousins, of a younger generation, were the principal beneficiaries. The other contestants were first cousins and heirs at law.

The case was heard by a jury which returned its advisory verdict that the testator was of sound mind, but that the will was procured by the undue influence of Thomas Simpson, who was the principal beneficiary. The presiding Justice, however, made a decree affirming the decision of the Probate Court allowing the will.

The record amply supports the decree. It portrays a man who never married, whose parents, brothers and a sister had predeceased him, whose heirs at law were cousins, having no contacts with him, although four of them lived in the same city. So far as disclosed, they paid no attention to him, either in sickness or in health.

His brothers, both older, were physicians. Dr. William Moran lived in Portland. Dr. Thomas Moran and the testator lived together for more than ten years in their own house in Biddeford and until the Doctor's death. All the brothers were bachelors.

The testator is shown to have been a man of good habits, always neat and trim in appearance, a regular church attendant, having no intimate friends but many acquaintances. He was not talkative but not taciturn.

Both brothers died within a few months of each other in 1936. As their heir at law, he received in 1937 and 1938 an aggregate of $43,000. His own estate was appraised at $55,870.

After the death of his brothers, it is shown that he managed his own affairs in prudent fashion. His house consisted of two tenements, in one of which he lived, renting the other. He was on good terms with his tenants, kept the premises in repair, paid taxes and all other bills promptly, procured supplies, kept records for and made income tax returns, kept a checking account upon which, during the last year of his life, he made at least a dozen deposits aggregating over $1,000. Four of these, amounting to $296.70, were made in December and January after the execution of his will. On occasion, he sold small amounts of stock. Except for legal advice as to income taxes and as to reorganization proceedings of a concern in which he held stock, he was unassisted, acted of his own volition, without error, and without dispute or disagreement in any of the transactions. He displayed conservative judgment in his financial affairs as shown by the fact that, when inventoried, his assets consisted of deposits in local banking institutions of over $20,000 and practically the entire balance in good securities. In the winter seasons, following the death of his brothers and until 1940, he went, unaccompanied to Florida. Although uniformly careful in expenditure of money, he explained to an acquaintance any seeming extravagance by the statement he saved the expense of winter clothing and of fuel. He also said he liked the climate and the people, and it seemed to be good for his health.

He sent from there a basket of fruit to his tenant in recognition of his accommodation in driving him to the railroad station on his departure. He also sent fruit to the Wright sisters, who are contestants and they produced at the hearing, as indicative of his interest in them, a short note inquiring as to receipt of one package which they had failed to acknowledge. He also made them a present of $50 when, in 1939, he received a letter conveying the information that one had been out of work and the other had been sick for a considerable period.

On the issue of testamentary capacity, the contestants relied, in part, upon alleged eccentricities, as indicative of an unsound mind. The principal witness in this connection was a man who had lived across the street for approximately a dozen years. He testified that he never saw any lights in the house; that the windows were always kept closed; that storm windows remained on all the year around; that tenants would stay one or two months and then move out; that there had been but four or five tenants there in eleven years. He asserted that these conditions also obtained while the brother, Dr. Thomas Moran, was living. He estimated, however, that the tenement was vacant probably four or five weeks in all. He further averred that the testator used to dust the building, lawn and steps with a feather duster; that the door and steps were painted in several noticeable colors different from the house; that at times the testator would come out without a coat, and wearing a white apron with little strings, such as a waitress would use; that the testator was accustomed to opening the front door slightly, look up and down the street, and then close the door.

Whatever weight this evidence might have had was largely dissipated by the testimony of a tenant of the testator, also called by the contestants. He said the feather duster was used solely to brush off dust from door, windows and sills; that a broom with long handle was used to brush lawn and walks at mowing time; that the steps were painted in two colors, one for the treads and the other for the risers, and that a lighter color than the house was used on window sills. He saw nothing unusual in their appearance. This tenant lived in the house from September, 1937, to May, 1939. He said the testator used kerosene lamps while he lived there, but he noticed electric lights afterwards. He further testified that he himself put on and took off double windows and saw none remaining on into the summer season except in 1939.

A second claim as to testamentary incapacity was the allegation that the testator suffered a paralytic shock on September 15, 1940, which affected his mental faculties. At the time mentioned, he was found lying on the floor in his home. It was evident that he had been there for at least two days. His left leg was affected. He was taken to a hospital where he remained until November 10th, when he was transferred to a nursing home where he stayed about a month. The nurse at the hospital testified that he remained unconscious for nearly a week.

Dr. O'Sullivan, however, who was called to the testator's home and who attended him for some weeks, testified that he had suffered what is commonly called a heart attack. He was then semi-conscious, but roused up and volunteered the information as to where the house key would be found. He was never unconscious after arrival at the hospital. As to the condition of the left leg, the explanation given by the Doctor was that it was caused by the temporary numbing of the reflexes by pressure from lying so long on the leg, which also produced sores on the hip and knee; that there was no cerebral involvement, and the patient progressed to convalescence satisfactorily. He talked with him daily. He was in a wheel chair in eight days and a little later was able to walk with the assistance of a nurse.

The theory of paralytic shock affecting the brain may well have been negatived in the minds of Court and jury by the medical testimony which was unchallenged by any other expert opinion.

It was further in evidence from another witness who assisted in removing the testator from the house, that he told Mr, Simpson to look after things for him, and told the witness to open a cupboard door and take from money he would find there two dollars for his trouble.

Contestants further sought to introduce certain records upon the ground that they established as a fact that the testator was once committed to the Insane Hospital at Augusta. A paper purporting to be a part of the hospital records was offered through its present Superintendent. The Court admitted a portion reading, "Michael Moran, Biddeford, admitted November 7, 1892. Native of Biddeford, Age 25." and the final portion reading, "January 25. Ad. Thos. Moran Fa. Biddeford. Home." The remainder of the record was excluded. It was shown that the witness had no personal knowledge of the record, nor who made it. The part admitted was upon the ground that it was a public record coming from proper custody, even though not required by statute to be kept, and it would be left to the jury to determine whether it was of and concerning the testator. The excluded portion read as follows:

"Single. Melancholia, hereditary—Had short attack one year ago—Recovered at home; has been depressed—About six weeks and wants to wander about: Has given a great deal of trouble coming here."

Later contestants offered an exhibit...