Old Colony Trust Co. v. Bailey

• Decision Date: 22 May 1909
• Citation: 202 Mass. 283,88 N.E. 898
• Parties: OLD COLONY TRUST CO. v. BAILEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

202 Mass. 283

88 N.E. 898

OLD COLONY TRUST CO. v. BAILEY.

Supreme Judicial Court of Massachusetts, Middlesex.

May 22, 1909

COUNSEL

Wm A. Morse and Francis J. Geogan, for appellant.

Guy W Currier, Weld A. Rollins, and Fredk. N. Wier, for Old Colony Trust Co.

Ralph W. Bartlett, for Fredk. W. Webber.

Warren Hoague, James & Bigelow (Edwd. H. Warren, of counsel), for Boston Home for Incurables.

OPINION

KNOWLTON C.J.

This is an appeal from a decree of the probate court, allowing the will of Martha E. Bailey, deceased. After a verdict upon an issue framed for a jury had been set aside as against the evidence, an additional issue was framed, numbered two, which, as afterwards amended and submitted to the jury, was as follows: 'Was the instrument propounded for probate as the last will and testament of Martha E. Bailey, procured to be executed in part by the fraud or undue influence of Frederick W. Webber; and if so, what part?' To this issue the jury subsequently answered, 'Yes, that all the bequests made in favor of Dr. Frederick W. Webber, mentioned in clauses No. 11, 16, and 17, be stricken from the will of Martha E. Bailey.' The first issue, as to whether the whole will was procured by undue influence, they answered in the negative.

The second issue was framed because the first trial suggested the question whether a part of the will might not have been procured by undue influence, while the larger part of it was a valid expression of the desire of the testatrix. Dr. Webber, referred to in the issue, and the Boston Home for Incurables, another legatee named in the will, as well as the executor and the appellant, were heard by the judge on the framing of this issue, and no appeal from the order, or exception was taken. It having been intimated subsequently, at the trial before another justice, that only the executor and appellant had any standing to be heard as parties, and up to this time no request having been made by others to participate in the trial, the counsel for Dr. Webber, while Dr. Webber was under cross-examination as a witness, claimed a right in his behalf to take a part in the trial. At first his claim was refused, and he took an exception. But very quickly, before the examination of Dr. Webber had proceeded much further, the judge told him that he might participate in the trial as fully as he pleased, and might argue the case to the jury if he desired. Thereafter he took part in the trial so far as he desired, and argued the case to the jury. He did not request the recall of any witness.

At the conclusion of the contestant's testimony, and again at the conclusion of all the evidence, he asked the court to withdraw the second issue from the jury, on the ground that no testimony had been offered to prove that any particular part of the will had been procured by the fraud or undue influence of Frederick W. Webber, and that the testimony had been offered to prove that the whole will had been so procured. This request was not founded on any contention that the issue was not properly framed originally, or that, upon proper evidence, the will might not be found to be procured by fraud in part and to be good in other parts. That this may be so found seems to be generally held by the courts, although it has never been distinctly decided in this commonwealth. Trimlestown v. De Alton, 1 Dow & Clark, 85; Allen v. McPherson, 1 H. L. Cas. 191-209; Harrison's Appeal, 48 Conn. 202; Rockwell's Appeal, 54 Conn. 119, 6 A. 198; Morris v. Stokes, 21 Ga. 552; Eastis v. Montgomery, 93 Ala. 293-299, 9 So. 311; Steadman v. Steadman (Pa.) 14 A. 406. See 1 Williams on Executors (10th Ed.) 291; 1 Jarman on Wills (6th Ed.) 37; Woerner, Law of Administration (2d Ed.) § 222. Decisions in this state assume or imply that this is the law. O'Connell v. Dow, 182 Mass. 541-552, 66 N.E. 788; Ogden v. Greenleaf, 143 Mass. 349, 9 N.E. 745. Wills have been proved in this commonwealth to take effect in part and to be void in part. Deane v. Littlefield, 1 Pick. 239; Holman v. Perry, 4 Metc. 492; Heath v. Withington, 6 Cush. 497.

Considered in reference to the evidence to which it was directed, this request was without foundation. There was evidence in the circumstances to indicate that the other bequests contained nothing to lead to the belief that Dr. Webber prompted them. This request was rightly refused.

The request to instruct the jury that the party seeking to set aside this will on the ground of undue influence must prove that an influence was exercised 'which constrained her [the testatrix] to do that which was contrary to her will and desire, but which she was unable to refuse to do,' was fully covered by the language of the charge.

Dr Webber's counsel excepted to this part of the charge: 'If you should find as you have listened to this evidence, that the getting of the trust deed was simply another act of undue influence, that is not the question at all. It is whether or not her condition of mind when she gave that trust deed to him, and because she gave it, is evidence tending to show a like condition of mind when she made the will. That is to say, having once got control of her mind, was it a permanent condition?' The sentence at the end of this quotation evidently was not an accurate expression of what was in the judge's mind. The will was made before the testatrix made the trust deed to Dr. Webber But the subject was afterwards discussed at length by the judge,...