Mirick v. Phelps

Citation8 N.E.2d 749,297 Mass. 250
PartiesMIRICK v. PHELPS et al.
Decision Date25 May 1937
CourtUnited States State Supreme Judicial Court of Massachusetts


Petition by George H. Mirick, executor in the will of M. Edna Cummings, for probate of the will of M. Edna Cummings, deceased, opposed by Harry G. Phelps and another. From a decree ordering trial by jury of an issue as to whether the will offered for probate was procured by fraud or undue influence, the petitioner appeals.

Affirmed.Appeal from Probate Court, Worcester County; Chamberlain, Judge.

C. B. Rugg, of Boston, for petitioner.

G. R. Stobbs, and L. E. Stockwell, both of Worcester, for respondents.

FIELD, Justice.

M. Edna Cummings, late of Worcester, died August 2, 1935, leaving as her next of kin two nephews-Harry G. Phelps and Robert E. Phelps-and a niece-Mabel A. Barrett. An instrument dated December 21, 1934, purporting to be her last will, was presented for probate. Its allowance was contested by the next of kin who moved that the probate judge frame issues for trial by jury. The motion was heard on statements by counsel of expected evidence. A decree was entered ordering trial by jury of the following issue: ‘Was the instrument propounded for probate as the last will of said M. Edna Cummings procured to be made in whole or in part by the fraud or undue influence of Harry Solomon and Gertrude Jones or either of them exercised upon the said M. Edna Cummings.’ The proponent appealed.

The personal estate of the deceased amounted to about $10,000. She also owned a house worth six or seven thousand dollars. The alleged will makes bequests of household effects and articles of wearing apparel, gives pecuniary legacies aggregating $8,700 in amount, including a legacy to each of the next of kin and a legacy of $2,000 ‘to Harry Edwin Solomon of Worcester, Massachusetts, if he shall survive me, in recognition and payment of his many acts of kindness and services rendered in my behalf,’ and gives the residue of the estate to said Solomon. Nothing is given to Gertrude Jones.

The next of kin are not precluded from contesting the allowance of the instrument offered for probate by reason of the fact that it makes the same provisions for them as were made by a purported will dated September 8, 1933. Dexter v. Codman, 148 Mass. 421, 423, 19 N.E. 517.

The principles controlling the granting of issues by a probate judge and the action of this court on appeal have been stated frequently and need not be repeated at length. In brief ‘the question is whether there appears to be a genuine question of fact supported by evidence of such substantial nature as to afford ground for reasonable expectation of a result favorable to the party requesting the framing of issues.’ Hannon v. Gorman (Mass.) 6 N.E.(2d) 433, and cases cited. See, also, Ware v. Morton, 288 Mass. 107, 109, 192 N.E. 505. By reason of the element of discretion vested in the probate judge his decision will be given the weight to which it is entitled in the light of the whole record. Briggs v. Weston (Mass.) 2 N.E.(2d) 466. See Gifford v. Patten, 265 Mass. 362, 363, 164 N.E. 89.

The action of the probate judge in framing the issue was not unwarranted.

On the trial of such an issue the burden of proving fraud or undue influence is on the contestant. Hogan v. Whittemore, 278 Mass. 573, 578, 180 N.E. 526. ‘Fraud and undue influence in this connection mean whatever destroys free agency and constrains the person whose act is under review to do that which is contrary to his own untrammelled desire.’ Neill v. Brackett, 234 Mass. 367, 369, see, also, page 370, 126 N.E. 93, 94. The issue expressed in terms of ‘fraud or undue influence,’ is in an established form (see Fuller v. Sylvia, 240 Mass. 49, 54, 55, 133 N.E. 384), which is proper even if the expected evidence relates only to influence exerted through coercion rather than through deception-‘fraud’ in the stricter sense. Martin v. Martin, 267 Mass. 157, 166 N.E. 820. See Whitcomb v. Whitcomb, 205 Mass. 310, 91 N.E. 210,18 Ann.Cas. 410;Angell v. Lighthipe, 251 Mass. 525, 528, 146 N.E. 692;Wellman v. Carter, 286 Mass. 237, 253, 190 N.E. 493;Briggs v. Weston (Mass.) 2 N.E. (2d) 466. Undue influence need not be proved by direct evidence but may be inferred from attendant circumstances, though there must be more than mere suspicion. Hoffman v. Hoffman, 192 Mass. 416, 419, 78 N.E. 492;Raposa v. Oliveira, 247 Mass. 188, 190, 141 N.E. 870.

According to expected evidence, for sometime previous to the execution of the instrument offered for probate the deceased, by reason of her condition of mind and body, was susceptible to influence, and Solomon and Miss Jones had ample opportunity to exercise such influence. On these matters there is little or no controversy. Solomon, who was not a relative of the deceased, lived with her for many years, first as a ...

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11 cases
  • Estate of Vick, Matter of
    • United States
    • Mississippi Supreme Court
    • September 20, 1989
    ...(1947); Morin v. Morin, 332 Mass. 223, 124 N.E.2d 251 (1955); O'Brien v. Collins, 315 Mass. 429, 53 N.E.2d 222 (1944); Mirick v. Phelps, 297 Mass. 250, 8 N.E.2d 749 (1937); Neill v. Brackett, 234 Mass. 367, 126 N.E. 93 (1920); In re Dand's Estate, 41 Wash.2d 158, 247 P.2d 1016 (1952); In re......
  • The Bible Speaks v. Dovydenas
    • United States
    • U.S. District Court — District of Massachusetts
    • January 25, 1988
    ...from having relations with her next of kin and told her that `her relatives didn't care for her as much as he.'" Mirick v. Phelps, 297 Mass. 250, 253, 8 N.E.2d 749 (1937). This is consistent with the bankruptcy court's finding that Stevens isolated Elizabeth Dovydenas from her husband and f......
  • The Bible Speaks, In re, 88-1254
    • United States
    • U.S. Court of Appeals — First Circuit
    • October 4, 1988
    ...v. Seward, 311 Mass. 389, 41 N.E.2d 290, 295 (1942); Smith v. Stratton, 302 Mass. 17, 18 N.E.2d 328, 330 (1938); Mirick v. Phelps, 297 Mass. 250, 8 N.E.2d 749, 751 (1937); Hoffman v. Hoffman, 192 Mass. 416, 78 N.E. 492, 493 (1906). Two, a court can "also consider that she [the donor] acted ......
  • Dilios' Will, In re
    • United States
    • Maine Supreme Court
    • November 30, 1960
    ...by direct evidence but may be inferred from attendant circumstances, though there must be more than mere suspicion.' Mirick v. Phelps, 297 Mass. 250, 8 N.E.2d 749, 751. 'The sufficiency of the evidence to sustain a verdict on appeal depends solely on the presence in the record of some compe......
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