Leonard, In re

• Citation: 321 A.2d 486
• Parties: In re Helen M. (Young) LEONARD, Appellant, From the Decree of Judge of Probate In re Allowance of Last Will and Testament of J. Herbert Gould.
• Decision Date: 24 June 1974
• Court: Supreme Judicial Court of Maine (US)

Page 486

321 A.2d 486

In re Helen M. (Young) LEONARD, Appellant,

From the Decree of Judge of Probate In re Allowance of Last

Will and Testament of J. Herbert Gould.

Supreme Judicial Court of Maine.

June 24, 1974.

David A. Nichols, Camden, for appellant.

Clifford F. O'Rourke, Camden, for appellee.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, ARCHIBALD and DELAHANTY, JJ.

ARCHIBALD, Justice.

Helen M. (Young) Leonard has appealed from the decision of a Superior Court Justice sitting as the Supreme Court of Probate sustaining the allowance of the last will and testament of J. Herbert Gould by the Judge of the Knox County Probate Court. Although there is nothing in the record which defines the exact relationship of the appellant to the testator, it was stipulated that she bore such a relationship as an heir-at-law to the testator that she had standing to appeal from the allowance of the will. 4 M.R.S.A § 401. Since she was not a beneficiary under the will and since the residuary devisee thereunder was not an heir-at-law, it is clear that appellant is an aggrieved party and, therefore, the Supreme Court of Probate had jurisdiction to entertain the appeal. O'Grady v. Partridge, 319 A.2d 115 (Opinion dated May 7, 1974); see In Re Will of Susan G. Edwards, 161 Me. 141, 210 A.2d 17 (1965).

The only issue urged before us on appeal is the legal accuracy of the finding of the Justice below that 'J. Herbert Gould did possess testamentary capacity at the time of the execution of said will.' A review of the record leads us to the conclusion that this decision was correct and we deny the appeal.

From the briefs and oral argument it becomes clear that appellant's position is not premised on the theory that the proponent has failed to prove the testator possessed sufficient mental competence to execute a will but is premised on the argument that the proponent failed to introduce competent evidence in the Supreme Court of Probate to prove that the testator, when the will was executed, possessed an active and disposing memory. ¹

Although the basic legal rules relating to testamentary capacity are precedentially settled, the application thereof to the facts of given cases is sometimes difficult. We must initially have these legal standards in mind.

18 M.R.S.A. § 1 permits 'a person of sound mind' and of 21 years of age to dispose of his estate by will. ² This statutory mandate of mental soundness is subject to 'no exception or qualification' and the burden rests upon the proponent to prove it affirmatively. Chandler Will Case, 102 Me. 72, 87, 66 A. 215, 221 (1906).

Our Court has interpreted testamentary capacity, adopting the following language:

'A 'disposing mind' involves the exercise of so much mind and memory as would enable a person to transact common and simple kinds of business with that intelligence which belongs to the weakest class of sound minds; and a disposing memory exists when one can recall the general nature, condition and extent of his property, and his relations to those to whom he gives, and also to those from whom he excludes, his bounty. He must have active memory enough to bring to his mind the nature and particulars of the business to be transacted, and mental power enough to appreciate them, and act with sense and judgment in regard to them. He must have sufficient capacity to comprehend the condition of his property, his relations to the persons who were or should have been the objects of his bounty, and the scope and bearing of the provisions of his will. He must have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and be able to form some rational judgment in relation to them.'

Hall v. Perry, 87 Me. 569, 572, 33 A. 160, 161 (1895); Waning, Appellant, 151 Me. 239, 117 A.2d 347 (1955); MacVeagh, Appellant, 141 Me. 260, 42 A.2d 903 (1945); Martin, Appellant, 133 Me. 422, 179 A. 655 (1935); In Re Will of Loomis, 133 Me. 81, 174 A. 38 (1934).

The type of evidence from which the inference of testamentary capacity may be drawn has likewise received judicial construction:

'(E)vidence of testator's conduct, emotions, methods of thought, and the like, for a very considerable period before and after the execution of the will, is admissible to show his capacity at the moment of making the will. The evidence must be restricted to a reasonable time on either side of the execution of the will.'

Waning, Appellant, 151 Me. at 252, 117 A.2d at 354.

The Law Court is limited in its review of the decision of a Justice sitting in the Supreme Court of Probate by the well established precept that his findings of fact are conclusive unless clearly erroneous. Rule 52(a), M.R.C.P.; ³ see Cotting v. Tilton, 118 Me. 91, 106 A. 113 (1919).

In our review of the facts heard by the single Justice and upon which his conclusion must necessarily rest, we are mindful of several decisions of this Court directed at the weight to be given specific types of evidence when testamentary capacity has been brought into issue. It is proper for a Justice faced with this issue to consider the language of the will itself as evidencing either testamentary capacity, or incapacity, as the case may be. Waning, Appellant, supra. Additionally, the testimony given by the subscribing witnesses to the will has been accorded prima facie effect in proving testamentary capacity. Martin, Appellant, supra; In Re Royal's Appeal, 152 Me. 242, 127 A.2d 484 (1956); In Re Paradis' Will, 147 Me. 347, 87 A.2d 512 (1952). The credibility of witnesses who testify on the issue of mental capacity and the probative force of their testimony is for the determination of the Justice who heard and saw the witnesses, and his conclusion thereon will not be subject to reversal if supported by competent evidence. MacVeagh, Appellant, 141 Me. 260, 42 A.2d 903 (1945).

Bearing in mind the foregoing legal principles, we now turn to the facts.

At the time this will was executed the testator was 79 years of age. He died slightly more than five years thereafter without changing the terms of his will despite the intervening deaths of his brother, his brother's wife, and his business associate, leaving only the widow of this associate as the survivor and ultimate sole beneficiary under the will.

The scrivener of the will, an attorney, had known the testator for 'probably 30 years or more before he died.' The attorney described his relationship with Mr. Gould in this language: 'I did legal work for him, did his income taxes, transactions of various kinds, so forth.' He had made at least one, if not more, prior wills for Mr. Gould.

Several days before the actual signing of the will in question the testator consulted his attorney and, because he was facing hospitalization, decided to make a new will. Pursuant to this consultation the attorney prepared the will, retained it for several days and, when requested to do so, went to the hospital for the purpose of having the will executed. He then met with the testator, had him read the will, and on being informed that he was ready to execute it, obtained the services of two licensed practical nurses employed at the hospital to serve as subscribing witnesses. The testator then signed the will in the presence of the attorney and the two nurses. The attorney described his concept of Mr. Gould's mental capacity by testifying 'he appeared to be able to execute an instrument.' The nurses, at least one of whom had attended Mr. Gould during his illness, described him as appearing 'normal' and 'alert.'

After the will was formally signed the attorney, at the testator's request, retained the will and took it to his office. A few days after the testator was released from the hospital he had occasion to be in the attorney's office and talked with the attorney's secretary, who was named as executrix in the will and was a long time family acquaintance of the testator. When asked the frequency of her meetings with Mr. Gould, she replied, 'so many times I couldn't remember,' and she characterized this as being 'probably more than six times a year.'

The record also discloses the following testimony from the...