Neill v. Brackett

• Decision Date: 08 January 1920
• Parties: NEILL et al. v. BRACKETT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

234 Mass. 367

126 N.E. 93

NEILL et al.

v.BRACKETT et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 8, 1920.

Exceptions from Superior Court, Suffolk County; Lloyd E. White, Judge.

Proceedings by Jessie W. Neill and by Mary E. Fallon and Sally S. D. Richards, both executrices under the will of Edward E. Richards, for probate of such will, contested by Gladys B. Brackett and another. From decree allowing the will, contestants appealed to the superior court, which framed issues for a jury, and, after an adverse finding, proponents except. Exceptions sustained.

John H. Devine and Arthur P. Gay, both of Boston, for appellants.

Frank H. Stewart and Walter A. Buie, both of Boston, for executors.

RUGG, C. J.

This case comes before us on exceptions taken at the trial in the Superior Court of Issues framed respecting the allowance of an instrument offered for probate as the last will of Edward E. Richards. The finding of the jury was in favor of the proponents as to the due execution of the instrument as a will and the soundness of mind of the deceased.

The remaining issue, with which alone we are now concerned, was whether the alleged will was ‘procured to be made through the fraud or undue influence of Mary E. Fallon and Sally S. D. Richards or either of them.’ The question is whether there was any evidence which warranted the submission of this issue to the jury, or whether a negative answer should have been directed.

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. It may be caused by physical force, by duress, by threats, or by importunity. It may arise from persistent and unrelaxing efforts in the establishment or maintenance of conditions intolerable to the particular individual. It may result from more subtle conduct designed to create an irresistible ascendancy by imperceptible means. It may be exerted either by deceptive devices or by material compulsion without actual fraud. Any species of coercion, whether physical, ental or moral, which subverts the sound judgment and genuine desire of the individual, is enough to constitute undue influence. Its extent or degree is inconsequential so long as it is sufficient to substitute the dominating purpose of another for the free expression of the wishes of the person signing the instrument. Any influence to be unlawful must overcome the free will and eliminate unconstrained action. The nature of fraud and undue influence is such that they often work in veiled and secret ways. The power of a strong will over an irresolute character or one weakened by disease, overindulgence or age may be manifest although not shown by gross or palpable instrumentalities. Undue influence may be inferred from the nature of the testamentary provisions accompanied by questionable conditions, as for example when disproportionate gifts or benefactions to strangers are made under unusual circumstances. When the donor is enfeebled by age or disease, although not reaching to unsoundness of mind, and the relation between the parties is fiduciary or intimate, the transaction ordinarily is subject to careful scrutiny. In such an inquiry all the attributes, sensuous, intellectual, ethical and religious, of the individuals concerned are involved. Strength or infirmity of will, natural and cultivated tastes and temperament, and tendencies to passion, resentment, obstinacy, prejudice and calm, all are elements to be considered. A strong sense of justice, determination and steadfastnessof purpose are significant considerations, as are also a spirit of domination, persistent desire to rule, and deep-seated selfishness. Age, weakness and disease are always important factors. Relations of intimacy, confidence and affection in combination with other circumstances are entitled to weight.

There may be influences directing the will-maker's attention to proper obligations which it might be thought ought to be satisfied by testamentary provisions. Such influences may be persuasive and effective, but, so long as not coercive, they are not undue. Circumstances often arise where such conduct is wholly justifiable. The mere opportunity of the wife, when living happily with the husband, to influence the execution of a will favorable to herself, or to cause discrimination against or amongst children, is not alone sufficient to warrant submission to the jury of the question of undue influence. Mere suspicion, surmise or conjecture are not enough to warrant a finding of undue influence. There must be a solid foundation of established facts upon which to rest an inference of its existence. This proposition applies with peculiar force when the result of drawing such an inference is to destroy the effect of a written instrument prepared with deliberation and signed and attested with all the formalities required by law for the execution of a will.

Fraud or undue influence, such as if found to have been exercised, invalidates a will, may be manifested in divers ways. It is not practicable or desirable to attempt to lay down any hard and fast rule. Whatever may be the particular form, however, in all cases of this character three factors are implied: (1) A person who can be influenced, (2) the fact of deception practiced or improper influence exerted, (3) submission to the overmastering effect of such unlawful conduct. Shailer v. Bumstead, 99 Mass. 112;McKeone v. Barnes, 108 Mass. 344;Woodbury v. Woodbury, 141 Mass. 329, 5 N. E. 275,55 Am. Rep. 479;Maynard v. Tyler, 168 Mass. 107, 46 N. E. 413;Dresser v. Dresser, 181 Mass. 93, 63 N. E. 12;Hoffman v. Hoffman, 192 Mass. 416, 78 N. E. 492;Whitcomb v. Whitcomb, 205 Mass. 310, 91 N. E. 210,18 Ann. Cas. 410;Aldrich v. Aldrich, 215 Mass. 164, 102 N. E. 487, Ann. Cas. 1914C, 906;Emery v. Emery, 222 Mass. 438,111 N. E. 287.

The deceased in the case at bar was about sixty-five years of age at the time of the execution of the instrument in 1915. His first wife died in 1909, leaving two daughters. Both of these were married and each a mother before 1915. Each testified that he was a loving, thoughtful, generous father to the end, and there was no evidence to the...