Neill v. Brackett

Citation234 Mass. 367
CourtUnited States State Supreme Judicial Court of Massachusetts
Decision Date07 January 1920
PartiesJESSIE W. NEILL & others, executors, v. GLADYS B. BRACKETT & another.

234 Mass. 367

JESSIE W. NEILL & others, executors,


Supreme Judicial Court of Massachusetts, Suffolk.

January 7, 1920

October 24, 1919.

Present: RUGG, C.


Will, Validity. Fraud. Undue Influence. Evidence, Presumptions and burden of proof.

Statement by RUGG, C. J., of the principles of law determining what constitutes fraud or undue influence which will render invalid an instrument duly executed by a person of testamentary capacity as and for his last will.

At the trial of an issue, whether a will was procured to be made through the fraud or undue influence of the decedent's widow, his second wife, the trial judge, subject to an exception by the executor, refused to order that the issue be answered in the negative. There was evidence warranting a finding that, after his second marriage, the decedent's powers both of mind and body began to wane, one physician testifying that he was "a little bit dull and a bit childish about some little things and his mind puerile; . . . in such condition that he could be easily influenced;" but, upon all the evidence, it was held that the exception must be sustained because the evidence fell short of showing an imperious and overruling spirit on the part of the widow which swayed the decedent's mind into conformity with her desires against his own judgment.

APPEAL from a decree of the Probate Court for the county of Norfolk allowing the will of Edward E. Richards, late of Brookline. The appellants were Gladys B. Brackett and Bertha E. Porter, children of the deceased by a first marriage.

In the Supreme Judicial Court for the county of Norfolk, the following issues were framed and sent to the Superior Court for trial by a jury.

"(1) Was the instrument purporting to be the last will and testament of Edward E. Richards duly and legally executed?

"(2) Was Edward E. Richards of sound and disposing mind and memory at the time of the execution of the instrument propounded for probate as his last will and testament?

"(3) Was said alleged will procured to be made through the fraud or undue influence of Mary E. Fallon and Sally S.D. Richards, or either of them?" [234 Mass. 368]

In the Superior Court, the issues were tried before White, J. Sally S.D. Richards, named in the third issue, was the decedent's widow, a second wife. Mary E. Fallon was his stenographer and bookkeeper. The alleged will was dated January 30, 1915, and contained provisions giving to the decedent's widow, Sally S.D. Richards, $3,000 and "all the fixtures, furnishings, pictures, books, furniture in the house in Brookline, and in the house at Marblehead automobile and contents of both stables at Marblehead and at Brookline;" to each of his daughters by his first marriage, the appellants, $500; to each of his two sisters, $500; to his grandchildren, children of the appellant Mrs. Porter, $300 each; to Mary E. Fallon, $300 and eight shares of stock in the Richards Real Estate Company; to Clarence W. Starratt, an employee, $300; to Jessie W. Neill, an employee for many years in charge of an office of the decedent, $500; to William Frank, an employee, $100; to each domestic servant who was in his employ at the time of his death, for a period of not less than five years, $25.

Provisions of the trust established by the residuary clause are described in the opinion. Jessie W. Neill, Mary E. Fallon and the decedent's widow were named as executrices and trustees without sureties on their official bonds.

Other material evidence is described in the opinion. At the close of the evidence, the proponents of the will moved that the first and second issues be answered in the affirmative and that the third be answered in the negative. The motion was denied. The proponents then asked for rulings, among which was a ruling that, upon all the evidence, the jury must answer the third issue in the negative. The ruling was refused.

The jury answered all the issues in the affirmative; and the proponents of the will alleged exceptions.

F. H. Stewart, for the appellees.

J. H. Devine, (A.

P. Gay with him,) for the appellants.

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, [234 Mass. 369] 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, mental 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, over-indulgence or age may be manifest although not...

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