Lee v. Horrigan

• Decision Date: 28 July 1953
• Court: Connecticut Supreme Court
• Parties: LEE v. HORRIGAN. Supreme Court of Errors of Connecticut

Page 909

98 A.2d 909

140 Conn. 232

LEE v. HORRIGAN.

Supreme Court of Errors of Connecticut.

July 28, 1953.

Denis T. O'Brien, Jr., Meriden, with whom was Denis T. O'Brien, 3d, Meriden, for appellant (defendant).

Nathan A. Resnik, New Haven, with whom, on the brief, was Cornelius T. Driscoll, Branford, for appellee (plaintiff).

Before BROWN, C. J., and BALDWIN, INGLIS, O'SULLIVAN and CORNELL, JJ.

BROWN, Chief Justice.

Thomas J. Horrigan of Meriden died on March 19, 1952, leaving an instrument dated May 16, 1951, which on April 25, 1952, was admitted to probate as his last will and testament. From this decree the plaintiff, as conservatrix of her brother, Thomas R. Horrigan, an incompetent son of the testator, appealed to the Superior Court, alleging lack of testamentary capacity, and undue influence by Beatrice Horrigan, the testator's second wife. Upon the trial in the Superior Court the defendant's motion for a directed verdict was denied and the jury, in answer to interrogatories, found for the defendant on the issue of testamentary capacity, but for the plaintiff on that of undue influence, and that the instrument was not the last will of the decedent. The court denied the defendant's motion to set aside the verdict and rendered judgment that the instrument was not the last will of Thomas J. Horrigan. The determination of the question presented by the error assigned in the court's denial of this motion disposes of the case, rendering discussion of the other assignments unnecessary. That the court properly instructed the jury as to the law is not questioned. We refer to the defendant executrix, in her individual capacity, as the defendant.

Upon the evidence the jury could reasonably have found the following facts: The testator had conducted a furniture and trucking business in Meriden for many years. He and his wife, Rose, had raised a family of four daughters, who had married, and an incompetent son, Thomas R. Horrigan. In the spring of 1947, when the testator was sixty-seven years of age and his son thirty-three, Rose Horrigan died and the testator sold out his business for $45,000. After his wife's death he continued to live in the home with a housekeeper and his son, for whose future welfare he was considerably concerned. Up to the time of the testator's marriage to the defendant as his second wife on February 10, 1948, he was on affectionate terms with his daughters and their families. They visited him frequently and he often gave them gifts.

In 1947 the defendant, a registered nurse forty-seven years of age, was living in Boston. She was married but had been separated from her husband since 1943. Prior to 1936 she had been connected with the hospital in Meriden and upon moving to Boston had stored her furniture with the testator. In the summer of 1947 she returned to attend to this furniture and was notified that the testator had sold the business. He told her of his wife's death and took her and one of his daughters out to dinner. On his invitation, she spent the night in his home. On two subsequent occasions that fall she returned to Meriden, each time to attend a party, and both times spent the night or longer in the testator's home. While it is conceded that there were no immoral acts between her and the testator during her visits, both of them did become intoxicated. The testator entertained her on another visit during the 1947 Christmas holidays. In contemplation of marrying the testator, and at his expense, the defendant instituted a divorce action against her husband. The husband died on January 14, 1948, before the divorce was heard, and on February 10, 1948, nine months after the death of the testator's wife, Rose, he and the defendant were married. His daughters objected on the ground that in remarrying so soon he showed a lack of respect for their mother and also because they were under the misapprehension that the defendant was a divorced woman.

After taking a wedding trip to Florida, the couple returned to live in the testator's home. In 1950 the defendant joined the Catholic church, of which the testator and his family had long been members. The testator's son, who worked at odd jobs, lived with his father and the defendant. On May 16, 1951, the will in question was executed. In November, 1951, the testator suffered a coronary thrombosis. Thereafter the defendant seldom allowed his daughters to visit him, claiming that the doctor advised that he should not have visitors, although she allowed others than members of his family to call upon him. Whenever members of the family were there, she never left them alone with him. In January, 1952, the defendant and the testator left for Florida, where he died on March 19, 1952. He was buried in Meriden.

The testator had often declared that he would make no will, because the statutes, giving one-third to his widow and two-thirds to his children, afforded a just disposition of his property. During 1950 he contracted an infectious eczema and thereafter he required medical treatment involving the continuous taking of sedatives. During this time the defendant plied him with intoxicating liquor and he became a heavy drinker, rather than a moderate one as he had been before marrying the defendant. The defendant was a possessive and domineering person, who, after the marriage, told him what he could and what he could not do. Upon the testator's death his own property was appraised at $36,062 and that jointly owned by him and the defendant with right of survivorship at $29,780.

The testator's son, Thomas, while living in the home during the months prior to the execution of the will, heard repeated and violent arguments between the defendant and his father concerning his will. At times they were so prolonged that he retreated to the room in the cellar which his father had fitted up as a recreation room for him in order to get a night's sleep, and on one occasion in the violence of the discussion he saw the defendant throw dishes at the testator. The defendant was demanding that the children should receive but $1000 apiece and that she should have the rest. She promised Thomas that she would give him $25 if he would tell no one about these arguments. Finally, upon the testator's failure to comply with the defendant's demands, she left early in May, 1951, and returned to Boston. Very shortly thereafter, the testator instructed an attorney to prepare the will on the terms which he specified and on May 16, 1951, he returned to the attorney's office and executed it. The will left $1000 to each of his five children, who, with the defendant, constituted his sole heirs at law and next of kin, and the rest, after the payment of debts, to her, and it named her as executrix. On May 19, 1951, the testator appeared outside of his church when two of his grandchildren had their first communion, looking unkempt and unshaved, and he acted as though ashamed to face the members of his family. Shortly after, he telephoned to the defendant and she returned from Boston. During the same month, he purchased the property adjoining his home for $10,000, and had the deed made out to himself and the defendant jointly, and to the survivor. That summer he erected a valuable building on the...