Leonard v. Stanton.
| Decision Date | 01 February 1944 |
| Citation | 36 A.2d 271 |
| Parties | LEONARD v. STANTON. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Hillsborough County; Connor, Judge.
Proceeding by Thomas J. Leonard, executor of the estate of Dennis E. Nash, deceased, against Delia Stanton. From an allowance of the will of Dennis E. Nash, Delia Stanton appeals. Transferred on appellant's exception to the granting of the executor's motion to dismiss the appeal.
Exception overruled.
Probate appeal, from the allowance of the will of Dennis E. Nash. The appellant, who is the daughter of the testator, charges that the execution of the will was procured by “fraudulent misrepresentations” of the executor and that the will was not properly witnessed. Transferred by Connor, J., on the appellant's exception to the granting of the executor's motion to dismiss the appeal. The material facts are stated in the opinion.
Thomas J. Leonard and Robert J. Doyle, both of Nashua (John E. Allen, of Keene, on the brief), for appellee.
Wason, Guertin & Leahy and Antoine A. Guertin, all of Nashua, for appellant.
The testator died on November 8, 1941. The appellant and James J. Nash are his only heirs. His will is dated June 26, 1940, and was drawn on that date by Thomas J. Leonard, an attorney, who is named therein as executor. There were three witnesses to the execution of the will, one of whom was Mr. Leonard. The last paragraph of the will reads as follows:
The testimony is undisputed that the will was dictated by Mr. Leonard to his secretary in the testator's presence and that the testator read the will after it had been typed and said that “everything was all right.”
On the day of the testator's funeral Mr. Leonard exhibited the will to the appellant and her brother-in-law, a Massachusetts attorney. To an inquiry as to what would “become of the residue of the estate after James Nash's death,” Mr. Leonard replied that it would go to the appellant. Counsel for the appellant contend that this was a questionable statement of the law and argue that if the testator had been informed that the rule of Clyde v. Lake, 78 N.H. 322, 100 A. 552, when applied to the will, might operate to deprive the appellant of the right to the residue left in the trustee's hands, he would not have signed the instrument; that, although Mr. Leonard's conduct was not consciously fraudulent, his failure to ascertain the law applicable to the situation and to acquaint his client therewith amounted to fraud in law, since an attorney, by virtue of his office, holds himself out “as having special knowledge and ability in the drafting of instruments.”
Of course the obvious answer to this argument is that any misrepresentation to be material must have been such as to induce the testator to make some disposal of his property that he would not otherwise have made (Knox v. Perkins, 86 N.H. 66, 69, 163 A. 497), and there is nothing in the evidence which tends to contradict Mr. Leonard's assertion that he did precisely what the testator requested him to do or which tends to prove that a different disposition of the property would have been made if the testator had been fully informed of the decision in Clyde v. Lake.
But the will would not be invalid even though the testator had explained to Mr. Leonard that he desired the appellant to have the residue of the trust fund after his son's death and Mr. Leonard had assured him in good faith that the instrument in question would accomplish that purpose; for, according to the prevailing view, if the testator knew and approved the contents of his will, it is immaterial that he mistook the legal effect of the language used or that he acted upon the mistaken advice of counsel;...
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