McLoughlin v. Sheehan

• Citation: 145 N.E. 259,250 Mass. 132
• Parties: McLOUGHLIN v. SHEEHAN et al.
• Decision Date: 18 October 1924
• Court: United States State Supreme Judicial Court of Massachusetts

250 Mass. 132

145 N.E. 259

McLOUGHLIN

v.SHEEHAN et al.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 18, 1924.

Exceptions from Superior Court, Worcester County; A. R. Weed, Judge.

In the matter of the estate of Ellen Moore, deceased. Petition by the executor, Thomas J. McLoughlin, for allowance of Will, contested by Katie Sheehan and another. Verdict for will, and contestants bring exceptions. Exceptions overruled.

The charge on undue influence was as follows:

‘On the other hand, may I point out to you also, that when it comes to this second proposition, namely that somebody must have exerted influence, when you come to the question of that influence, if it was exerted after, it is of no consequence here. It must have been exerted at or prior to the making of the will. If it was not then, it is of no consequence to us. The family quarrels the people may have had after are not of any consequence except as they shed light on this question, first of her mental condition and secondly whether these people Mr. or Mrs. McLoughlin are shown to have actually exerted and attempted to exert influence over her prior or at the time of the making of this will. Of course if they did not exert it then whatever they said or did or didn't do afterwards cannot affect the question at all and should be excluded from your mind in coming to your conclusion.

‘It must be proved by evidence that satisfies you by a fair preponderance of the evidence that such an exertion of influence was made. It isn't a question of guesswork. It isn't a question of conjecture. It isn't question merely of opportunity. The mere opportunity to influence another isn't undue influence. For that matter actual importunity isn't necessarily undue influence. It is perfectly proper for me to ask anyone of you to remember me in your will. I haven't unduly influenced you by so doing.

‘It is only when by some action I have overcome or controlled you and for the time being I have got you so far within my grasp that you do something that your judgment does not dictate at all, that your will and your judgment have parted company. It is only then that we have undue influence.’Frank B. Hall, James W. Burke, and John H. Mathews, all of Worcester, for executor.

Francis P. McKeon, of Worcester, for contestants.

RUGG, C. J.

This case comes before us on exceptions taken in the superior court at the trial of two issues to a jury framed on a petition for the allowance of the will of the late Ellen Moore. The issues related (1) to the soundness of mind of the alleged testatrix and (2) to the procurement of the will through the fraud or undue influence of named persons.

[1][2] There was no error in the exclusion of testimony to the effect that the witness thought the testatrix was a woman over eighty years of age. It does not appear that this opinion was founded on personal observation. In the bill of exceptions the age of the testatrix is stated as a fact to have been about seventy years at the time of her death. That having appeared, further evidence on so subsidiary a point was irrelevant. In appropriate instances a witness may testify as to the age of another as a deduction from sufficiently specific facts within his own knowledge. Commonwealth v. O'Brien, 134 Mass. 198. Much must be left to the discretion of the trial judge on such a matter.

[3] A witness, asked to narrate a conversation had by her with the testatrix, was unable to fix its date, but it was shown in some other way to have been in February, 1917. On refusal by the trial judge to admit the conversation, the offer was made to show that, sometime between the years 1917 and 1921, the testatrix ‘appeared at the window of her third story flat’ and said, ‘Thank God, the McLoughlins have gone. I will see you.’ We assume in favor of the contestants that reference was thus made to the persons charged with exercising undue influence. It is stated in the exceptions as a fact that the McLoughlins, from July, 1917, until her death, either lived in the same tenement or in the same house with the testatrix. There was no error in the exclusion of the question. Construed strictly, the offer of proof was not directed to the time at which the witness had the knowledge. It did not correlate with the question. Hallwood Cash Register Co. v. Prouty, 196 Mass. 313, 82 N. E. 6. Construed according to its terms, the offer related to a time subsequent to the execution of the will. Giving to the excepting party the brodest construction of the exception, there was no error. The matter was at best remote from any issue on trial and might well have been excluded in the exercise of sound judicial discretion. The case is distinguishable from Whitney v. Wheeler, 116 Mass. 490.

It appeared in evidence that a conservator of the alleged testatrix was appointed several months before the date of the instrument offered for probate as her last will, and that her property continued to be under a conservator until her death. There were, within the calendar year during which the alleged will was executed, two or three successive adjudications by the probate court that the essential facts existed requisite for the appointment of a conservator under the statute (now G. L. c. 201, § 16), namely, incapacity to care for her property ‘by reason of advanced age or mental weakness.’ It is stated in the exceptions that the conservator was ‘appointed by reason of her advanced age.’ The contestants requested a ruling to the effect that these adjudications...