May v. Bradlee

• Decision Date: 04 September 1879
• Citation: 127 Mass. 414
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Frederick W. G. May & another, executors, v. Mary P. Bradlee & others

127 Mass. 414

Frederick W. G. May & another, executors, v. Mary P. Bradlee & others

Supreme Court of Massachusetts

September 4, 1879

[Syllabus Material] [Syllabus Material]

Argued January 24, 1879

Middlesex. Appeal by the executors of the will of Frederick May from a decree of the Probate Court disallowing the will. Trial before Lord, J., who allowed a bill of exceptions in substance as follows:

The case was tried in this court upon the following issues: 1st. Whether the alleged will was duly executed. 2d. Whether Frederick May, at the time of the execution of the will, was of sound and disposing mind and memory. 3d. Whether he was unduly influenced to make the alleged will. 4th. Whether he ever revoked the same. 5th. Whether he was unduly influenced to revoke the same.

1. The testator was under guardianship as an insane person from 1844 to the time of his death. The will offered for probate was dated July 14, 1870; and the alleged revocation took place in September 1874. It appeared in evidence on behalf of the appellants that, in the summer of 1874, a petition, signed and prosecuted by Sarah E. Skinner, (one of the persons charged with exerting undue influence in the making of the will and also in procuring a revocation of said will,) but afterwards signed also by Frederick May, had been presented to the Probate Court, for the removal of his guardian Frederick W. G. May, and an answer thereto filed by said guardian; that a trial had been had thereon in that court, and the petition was dismissed and an appeal taken. The petition and answer were offered in evidence by the appellants. The petition was admitted without objection, but the appellees objected to the admission of the answer. The appellants claimed the right to show what the issue made up and tried in that proceeding was, and how far the will produced there at the call of the ward, and alleged to have been there revoked by him, was legitimately the subject of investigation. Frederick W. G. May was one of the executors named in the alleged will, had children named as legatees in the will, and was one of the persons specified in one of the issues as having procured the will through undue influence. The answer contained various allegations by the guardian as to the character and conduct and treatment of Frederick May. It appearing that Frederick May erased his signature from the will, in open court, in the course of the hearing upon the petition, and the appellants claiming to have introduced evidence, from which the jury might infer that the whole proceeding for the removal of the guardian was a contrivance for the purpose of getting at and destroying the will, the judge admitted the answer in evidence, to show the issue in the Probate Court, and to exclude the idea that in any legitimate manner the will could have then been the subject of investigation.

The report of the examination of Frederick May at the hearing in the Probate Court was put in by the appellees, read in full to the jury, and used in the examination of their medical experts. The report of all the acts and declarations of the testator, and of all that took place at the erasing of the signature, was put in by the appellants, and the same was commented upon by the counsel of both sides, as part of the res gestoe, and the jury was permitted to consider it as such. The counsel for the appellees afterwards, during the charge to the jury, contended that the statements made by the testator in a private examination of Frederick May by the judge of probate, during this hearing, were also part of the res gestoe, and competent to prove the facts stated.

2. On the question of Frederick May's soundness of mind, the appellees called, as expert witnesses, several persons, who were superintendents of hospitals for the insane, and who attended the trial and heard the testimony offered on both sides. By the direction of the judge, these witnesses were interrogated upon hypothetical cases based upon the evidence. The counsel of the appellees had inquired, upon certain facts assumed, "What is your judgment upon the question, whether this man was or was not of sane mind?" and one of these witnesses had replied, "My opinion is, he had an unsound mind;" and "Whether he was competent to transact the general, ordinary business of life?" and the witness had replied, "In my judgment, not." The counsel for the appellees then framed a hypothetical case, and inquired of the witness, "Whether, assuming the facts stated in such case to be true, the said Frederick May was competent to make a will?" The appellants objected, and the objection was sustained by the judge.

3. The appellants called Mrs. Catharine Stanwood as a witness; and she was asked whether Miss Skinner ever talked to Frederick May about a will. The witness having answered in the affirmative, the appellants proposed to ask her what Miss Skinner said. The appellees objected, on the ground that it was offered to show undue influence, a matter with which the heirs at law had no connection. The judge ruled that, upon the question of the testator's general testamentary capacity, anything that was said to him or by him was admissible. The witness was then asked, "What, if anything, did Miss Skinner say about a will to Mr. May, the ward, when you were present?" and made the following answer: "He turned to her and said, 'Sarah, I am going to make a will and leave you $ 20,000.' She whispered to him. He told me, she said she wanted the whole or none. Then I heard her say, 'Have n't I done everything I could for your comfort and happiness?' He said, 'I thought so;' and she replied, 'Yes, I have; a great deal more than I ought to have done.'"

4. The appellants contended, that certain declarations of the testator, made after the alleged revocation of the will, were admissible under the rule laid down in Shailer v. Bumstead, 99 Mass. 112; and inquired of a witness, Mrs. Stanwood, what Frederick May said to her about the will on December 3, 1874. The appellees objected; but the question was allowed by the judge, and the witness answered, "Mr. May said, 'She (Miss Skinner) told me to scratch my name out.' I said, 'Did you feel that you must do as she told you?' He answered, 'Yes. Perhaps you cannot understand it, but I always felt that what she said I must do. When she turned me out of her house, and told me to go, the time I went to Bennett's, I knew there was no use of saying anything; I went; and it was always so. What she said I must do, I must do.'" Upon calling the attention of the judge to this declaration, and others of a similar character made to another witness the day after the alleged revocation, for instruction in the charge to the jury, the presiding judge said, "These statements, and those made before the judge of probate and at other times, are not evidence to prove facts; they are not evidence to prove that somebody helped him to make the will; but they are competent evidence to show the condition of his (the testator's) mind at the time; also what his testamentary capacity was. Only in this view are they competent, and therefore, whatever he said about the revocation or about the making, when they are recital of facts afterwards, they are not competent to prove the fact stated."

5. Frederick W. G. May, who had been the guardian of Frederick May for some years, but was not an expert, was asked the following question by the appellants: "Whether you ever observed, in all this long period, anything in Frederick May which led you to infer in your own mind, in common parlance, that he was a crazy or cracked man." The appellees objected; but the question was allowed by the judge, with this explanation: "I put it upon this ground; I want you to understand it precisely; the question is, whether he ever observed any fact which led him to infer that there was any derangement of intellect." The witness answered: "No, I don't recall anything of that sort now; he was the better for advice and guidance, like many another man. I never saw any crazy act. His temper would sometimes make him excitable, very irritable; but any absolutely crazy act or speech I don't recall, nor anything approaching to it, now."

The judge instructed the jury upon the whole case, and no exception was taken to the instructions. The jury found in favor of the appellants upon the first four issues, and made no finding upon the last issue. The appellees alleged exceptions.

Exceptions overruled.

E. D. Sohier & R. Olney, for the appellees.

G. W. Phillips, for the appellants.

OPINION

Colt, J.

This was an appeal from a decree of the Probate Court disallowing the will of Frederick May. The case was tried on certain issues framed for the jury; a verdict was rendered sustaining the will; and the case comes before us on exceptions taken by the appellees to the admission...