Nash v. Hunt

• Decision Date: 10 November 1874
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Erastus M. Nash & others, executors, v. Henry Hunt

116 Mass. 237

Erastus M. Nash & others, executors, v. Henry Hunt

Supreme Court of Massachusetts

November 10, 1874

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Plymouth. Appeal by the son and sole heir at law of Thomas J. Hunt, ate of Abington, from the allowance by the judge of probate of two instruments, one as his last will, and the other as a codicil thereto, the execution of which the appellant contended was procured by undue influence, and while the testator was not of sound and disposing mind.

At the trial, before Ames, J., of issues framed on each allegation, the jury found in favor of the will and codicil, and a bill of exceptions, in substance as follows, was allowed:

The will of the testator, dated December 31, 1872, after providing for the payment of his debts and certain legacies, contained the following provisions:

"All the residue and remainder of my property and estate in possession or action, remainder or reversion, and wherever situate, real, personal or mixed, I devise and bequeath to Erastus M. Nash and Gilman Osgood, both of said Abington, and Peter Semonin, of Evansville, Indiana, and to the survivor of them, and to the heirs of such survivor. In trust, however, and for the uses and purposes following, namely, 1st. To permit my wife Sarah, and my son Henry, to occupy and improve and take the rent and profits of all my real estate, keeping the same in repair, and paying all taxes and insurance during the lifetime of my said wife and son and the survivor of them, and to collect and receive all my personal estate, and the same to convert into money, (except such portions as may be required for the use of my said wife and son,) and said moneys according to their best judgment safely to invest, and the same from time to time to reinvest, and the net income thereof, and so much of the principal as may be necessary to apply to the liberal support, maintenance and comfort of my said wife so long as she may live, all to be in lieu of her dower; and after said provision for my said wife, the residue of said income to pay over to my said son so long as he may live; and upon the decease of the survivor of my said wife and son, to pay over and convey all the real and personal of said trust estate to the heirs at law of my said son, according to the statutes of descent and distribution of this Commonwealth.

"And my will is that said trustees have power, upon the request in writing of my said son, if said trustees deem it for the best interest of my estate, from time to time to sell and convey any portion of my real estate, and the proceeds thereof to invest, and hold with the other personal estate, using the income as above set forth.

"And my will further is that said trustees have power, if they deem it for the best interest of my said son, at any time during the lifetime of his said mother, to furnish my son with money to invest in his business, not exceeding ten thousand dollars. And after the decease of his said mother, with a further sum not exceeding ten thousand dollars.

"And my will further is that said trustees expend a sum not exceeding five thousand dollars for the improvement of the burial lot belonging to myself and my deceased brother Joseph, in the Mount Vernon Cemetery in said Abington.

"And whereas I am a member of the firms of Hunt, Semonin & Co., and Semonin, Dixon & Co., and have an equal third part of the profits of each firm, and have full confidence in the integrity and ability of my said copartners; therefore my will is that my said trustees have full power after providing for the foregoing payments out of my personal estate and out of funds due me from said copartnership, to allow the residue of the amount due my estate out of said firms to remain in the hands of said Semonin & Dixon on their note on interest, not to exceed seven per cent. per annum for such time, and I recommend to said trustees so to do, as to my said trustees may seem safe and judicious, leaving it to said Semonin & Dixon to pay to my said son such share of the net profits of their business as to said Semonin & Dixon may seem to be fair and just, and according to our verbal understanding.

"And I do hereby nominate said Erastus M. Nash, Gilman Osgood and Peter Semonin, to be executors of this my will, and I request that they shall be exempt from giving a surety or sureties on their official bonds both as executors and as trustees."

The codicil dated December 31, 1872, contained the following provision: "If the executors and trustees named in my said will, after collecting from the firms of Hunt, Semonin & Co., Semonin, Dixon & Co., the sums first named in my will, amounting to thirty-four thousand dollars, shall decide to collect from said firms the balance due my estate as soon as may be, then my will is that said Semonin & Dixon, my surviving partners, shall not be compelled to pay such balance faster than in the following proportions: $ 15,000 in four and one half years, $ 15,000 in five years, and $ 20,000 in five and one half years, all after said first named collection, and such further reasonable time as with reasonable diligence may be necessary for the collection of outstanding copartnership claims; said payments of $ 15,000 and $ 20,000 being increased or diminished in proportion to the amount found due my estate from said copartnership assets."

The appellees presented, the written instrument purporting to be the last will of the deceased, with the codicil. The three attesting witnesses were called, and were asked the usual questions concerning the execution of the will and codicil, and the condition and sanity of mind of the testator at the time.

Perez Simmons, a counsellor at law, was one of these witnesses. He testified that he was frequently consulted by the testator professionally; that he received a note from the testator, in consequence of which he went to see him, and was instructed as to the will; and that a rough draft of the proposed will was made, containing various erasures and interlineations. He was fully examined and cross-examined as to all the circumstances attending this draft and as to the erasures, &c., and also as to the execution of the will and the codicil. And upon intimation from the judge that the appellees might give further evidence upon the question of sanity, in reply to such as should be given on the part of the appellant, they rested their case.

The appellant testified without objection, that he had an interest as a partner in the firm of Varney & Harvey of the value of from $ 33,000 to $ 34,000; that the firm consisted of A. B. Harvey, William H. Varney, John Lane, the testator, and himself; and also stated that the partnership affairs were adjusted by a suit in equity in this court, brought by one of the partners for that purpose, and were finally settled by the several partners in accordance with the report of a master in chancery to whom the account had been referred for a statement by the court, who found the appellant's interest as above stated.

The appellant then offered a duly certified copy of the record of that case, with the report of the master in chancery, but upon objection the judge excluded the evidence.

The appellant also testified that while said suit was in progress, his father requested him to go to the office of Hutchins & Wheeler, who were the attorneys of the testator in said suit; that he went accordingly in company with his father; that he there had an interview with Hutchins alone, while his father was in another room; that then the three had an interview together, in which Hutchins urged him to assign his interest in the concern of Varney & Harvey to his father, in order to enable the father to negotiate a settlement; that Hutchins further urged the appellant to do this, and said in substance that he would have all his father's property at his death, and it would make no difference to him if the father should hold his property; that soon after this interview, the appellant had an interview with his father at Abington upon this subject, in which he stated to his father that he did not like to make such an assignment, but that under the circumstances he should do so, and that he did execute an assignment under seal, which, after his father's death, was found among his papers. The assignment was produced, and bore date October 24, 1867, and is as follows: "Know all men by these presents, that I, Henry Hunt, of Abington, in the county of Plymouth, in consideration of one dollar to me paid by Thomas J. Hunt, my father, of said Abington, receipt of which is hereby acknowledged, hereby sell, assign and transfer and set over to the said Thomas J. all my right, title, claim and interest as a partner in the copartnership of Varney & Harvey, or claim upon John Lane, arising out of any partnership with him under the style of Varney & Harvey, or claim upon said Varney & Harvey, or the said Thomas J. Hunt arising out of said copartnership. To have and to hold to him, the said Thomas J. Hunt, his executors, administrators and assigns, with power to demand and secure the same, using my name if necessary in any and all process."

The appellees in rebuttal called Henry C. Hutchins, who testified that he was of counsel for the defendants in the suit of Harvey v. Hunt and Lane & others; that the above assignment was in his handwriting, but that he did not recollect where it was executed nor the circumstances under which it was made, nor did he recollect that Henry Hunt had any conversation with him in regard to its execution. The witness then produced the following instrument, signed and sealed by the appellant,...