Jenkins v. Weston

• Decision Date: 06 January 1909
• Citation: 200 Mass. 488,86 N.E. 955
• Parties: JENKINS v. WESTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

200 Mass. 488

86 N.E. 955

JENKINS v. WESTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 6, 1909

SYNOPSIS

Exceptions from Supreme Judicial Court, Suffolk County.

Petition by Lawrence W. Jenkins for the allowance of the will of William H. Weston, deceased, to which Henry E. Weston and others filed objections. From a decree of the probate court disallowing the will, petitioner appealed to the Supreme Judicial Court, where testator was again found not to have testamentary capacity, and plaintiff brings exceptions. Overruled.

There were two contestants to the will upon the record: Henry E Weston, a brother of the testator, and Marland L. Pratt, of Boston, a creditor. Copies of papers in the case are made a part hereof.

At the trial before the jury Henry E. Weston was represented by Mr Berenson as his attorney, who called no witnesses, relying upon evidence introduced by others, and took no part in the trial except to ask a question of two of the witnesses for the petitioner, and to assist in the preparation, and, by conference with other counsel, in the trial, of the case. Marland L. Pratt was represented by Mr. Brandeis and Mr Wilkie as attorneys, and caused to be taken and read the depositions of Dr. MacDonald and W. R. Healkes, and caused to be called all the witnesses who were examined on behalf of the contestants, and his counsel, in his behalf, made the opening and closing address to the jury. Said counsel, in opening, said to the jury that he appeared for Mr. Pratt, who contested as a creditor.

It appeared that the will was executed in Boston, April 25 1905, and that the testator died at Lake George, N. Y., upon May 208 1905, aged 43 years, and leaving his brother Henry as his only next of kin.

It was contended by the respondents that the testator was of unsound mind as the result of general paresis and alcoholism and cigarette smoking. The court fixed January 1, 1901, as the reasonable limit of time as to which evidence of the condition of the testator could be introduced.

The petitioner introduced the testimony of the witnesses to the will, who severally testified to its execution, and that in their opinion the testator, at the time of the execution of the will, was of sound mind. Neither of these witnesses had had any prior acquaintance with the testator, and had never seen him at any other time or place than the place and time of the execution of the will.

The contestant Pratt testified in his own behalf that he lived in Boston all his life, and first knew the testator about 1887, and saw him frequently before he went to Nova Scotia in 1895, and first had business relations with him in 1897; that in 1897 he made a loan of $25,000, and an agreement was signed by the testator and his brother Henry; that at the same time a will was executed by the testator and placed in the hands of the witness' counsel, Mr. Champlin; that later he, Pratt, advanced $5,000 more upon a supplemental agreement; that from 1897 to 1900 he saw the testator three or four times a year, either in Nova Scotia or in Boston, and about the same number of times per year to October, 1902, when testator came to Boston, and after that saw him quite a little in Boston; that he never received any part of the $25,000, but did receive some $2,000 in interest; and that he recovered a judgment January 6, 1904, against the testator and his brother Henry, for $40,183.66, which had not been paid in any part, and that no defense was made to the suit.

The witness identified four telegrams. Witness first saw the telegrams about January 5, 1901, and later talked with the testator about them. The telegrams were then offered in evidence as statements bearing on testator's mental condition at that time, and subject to the defendant's objection as too remote, and to his exception, were admitted to prove a progressive disease of general paresis.

The witness further testified as to alleged changes in testator's speech and personal appearance, and identified many letters from the testator, which were read in evidence.

The contestant Pratt called several witnesses, who testified, in substance, to their acquaintance with the testator for periods of from 5 to 12 years before his death, to his mental and physical condition during their early acquaintance, and to alleged changes in his physical appearance, personal habits, memory, manner of conversation, and mental condition, and also called Drs. Lane and Putnam, medical experts, who testified as to the character and causes of general paresis, and the symptoms tending to show its existence.

Dr. Lane, in reply to the hypothetical question of Pratt's counsel, testified that in his opinion testator was not of sound and disposing mind; but upon cross-examination upon questions repeating to him each specific clause in the will, testified as to each clause that in his opinion testator did have sufficient intelligence, memory, recollection, and understanding to know and appreciate that he was making a will, to recall and know the persons named in the clause, and to realize and understand that he was giving his property to them respectively.

Dr. Putnam testified that he examined the testator as to his mental condition in 1901, by arrangement with the contestant Pratt and Mr. Cogswell, of the petitioner's counsel; that he made no note of any paretic condition, and did say he could go back to his work, but did not recall telling Mr. Coggswell that there was no unsoundness of mind.

The deposition of S. R. Heakes, taken on behalf of said Pratt, was read, from which it appeared that the deponent was 29 years of age, and his address was 60 Wall street, New York, and his occupation a mining man; that he knew testator from 1901 until he left Nova Scotia; that he knew the contestant Pratt, and had known him as his employer in Nova Scotia from some time in 1901; that he knew the habits and manner of living of testator, and saw him daily when he was at the mines, during a period of his service under Mr. Pratt; that he noticed changes, during the time he knew him, in his intelligence and understanding and physical condition; and these changes were gradually giving himself over to extreme dissipation; that he noticed peculiarities in his speech and conduct--giving orders to workmen and afterwards apparently sincerely denying it, claiming to have no recollection of the matter. In answer to the interrogatory, 'Did you observe in your association with said William H. Weston any incoherence in the talk and conversation of said Weston?' he answered 'Yes,' and to the interrogatory, 'If so, please state as many instances of such as you can recall,' subject to the petitioner's exception, he answered, 'Sometimes in consulting him on matters which he tried to superintend it was impossible to get any intelligent information; he seemed to want to do it, but could not concentrate his thoughts.' To the interrogatory, 'If within your knowledge he used any of these [intoxicants, drugs, or tobacco], please state which, to what extent, and whether his use of such articles, or any of them, increased or decreased during the time of your association with the said Weston,' the answer was, 'From the time I first saw Weston until he left Nova Scotia he was addicted to the use of liquor. These habits never changed, but seemed rather to have a fuller mastery.' The plaintiff objected to the last words of the answer, 'but seemed rather to have a fuller mastery,' but the same were admitted subject to his exception.

'Int. 18. Please state whether or not, within the time you knew him intimately, said Weston failed mentally or physically. Ans. Yes; both.

'Int. 19. If so, please state, as far as you remember, any particular instances or details from which said knowledge has been acquired. Ans. On one occasion the placing of a large order for general mining supplies with Mr. Percy Austin, of Halifax, afterwards denying it, supplies being returned to shipper. The deliberate act of scaring horses driven by me in the middle of the night, causing me the slight inconvenience of a broken arm and a few broken ribs. Although Weston was present at the scene which followed, it was not until the following day that he came to say he had just heard of my accident.'

To the last paragraph of this answer, beginning with 'deliberate act of scaring horses,' the plaintiff objected, and the same was admitted subject to his exception.

The contestant Pratt also offered the deposition of W. Huntley MacDonald, of Antigonish, N. S., taken by the contestant from which it appeared that deponent's name was W. Huntley MacDonald, his address was Antigonish, N. S., and that his occupation was physician; that he obtained his medical education at the Harvard Medical School at Boston and had been practicing for 12 years; that he knew William H. Weston, professionally, at Antigonish, from January 8 to February 19, 1901; that he rendered the said Weston medical attendance; that he was acquainted with his habits and manner of living; that his habits were irregular; that he was a hard drinker of alcoholic liquors; that he was an inveterate cigarette smoker; that in his opinion the continuation of such habits would render him a physical and mental wreck. To the ninth interrogatory and answer the petitioner...