Reilly v. McAuliffe

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before QUA; SPALDING
• Citation: 117 N.E.2d 811,331 Mass. 144
• Parties: REILLY v. McAULIFFE et al.
• Decision Date: 26 February 1954

Page 811

117 N.E.2d 811 331 Mass. 144 REILLY
v.
McAULIFFE et al. Supreme Judicial Court of Massachusetts, Plymouth. Argued Nov. 6, 1953.
Decided Feb. 26, 1954.

Page 812

Edward O. Proctor, Boston, for petitioner.

Edward H. Stevens, Brockton, Eben G. Townes, Brockton, for respondents.

Before QUA, C. J., and WILKINS, SPALDING, WILLIAMS and COUNIHAN, JJ.

[331 Mass. 145] SPALDING, Justice.

This case comes here on the petitioner's appeal from a decree disallowing an instrument purporting to be a codicil to the will of Mary A. Donovan, late of Brockton. The judge made findings of material facts and the evidence is reported.

The facts are in substance these: On August 4, 1948, Mary A. Donovan, hereinafter called the testatrix, executed her will. There was no contest with respect to this instrument and it was admitted to probate. After making pecuniary bequests amounting to $3,650 and bequests of certain personal effects, the testatrix under the twelfth clause of her will gave the residue of her estate to James, Marion, and Charles Pyne, children of her niece by the half blood, Elizabeth Pyne; to Mary Creeden, John and James McAuliffe, children of her sister Hannah McAuliffe; and to Margaret, Mary Ellen and George Twomey, children of her sister Ellen Twomey, share and share alike. Madeleine L. Reilly, hereinafter called the petitioner, was named executrix.

An instrument purporting to be a codicil to this will was executed by the testatrix on May 26, 1951, ten days before her death. By its terms clauses 6, 7, and 12 of the will were revoked and new provisions were substituted. A legacy of $200 to her nephew George Twomey under the sixth clause was increased to $1,000, and a legacy of $25 to Annie Reilly (the petitioner's mother) under the seventh clause was increased to $50. Under the substituted twelfth (residuary) clause the petitioner was made the sole legatee. If the codicil is allowed the petitioner would receive the major portion of the estate, the value of which is approximately $20,000.

The testatrix, a maiden lady, was eighty-one years of age when she died. For many years she had been employed as a domestic servant in various households. When not employed she lived in the home of her sister Ellen Twomey in Brockton and for a while she stayed with her sister Hannah McAuliffe who also lived in Brockton. In 1946 she rented a room in the home of the petitioner's mother, Mrs. Annie [331 Mass. 146] Reilly, of Brockton, and lived there until April 3, 1951. Throughout this period 'the relation of * * * [the testatrix] to her sisters and brother and their families was always pleasant.'

On April 3, 1951, the testatrix was admitted to the Brockton Hospital. Her condition was diagnosed as cancer of the bladder. As a result of an operation performed on her on April 9 it was discovered that the cancer was inoperable. On April 25 she was removed to the Braemoor Rest Home. While at the hospital she was constantly under the influence of opiates and drugs administered for the purpose of deadening pain. During the period that she was at the rest home she 'was suffering severely from cancer' and was given opiates, sedatives, and drugs to alleviate pain. ¹ At times both at the hospital and at the rest home she 'was confused and had some hallucinations but was generally rational'.

On April 26, 1951, the day following the

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removal of the testatrix to the rest home, the petitioner and Mr. Ovide V. Fortier were appointed conservators of her estate on the grounds of advanced age and physical incapacity.

The petitioner has been a member of the bar since 1927. She first became acquainted with the testatrix in 1946 when the latter went to live in the home of the petitioner's mother. At times when the petitioner would take her mother for an automobile ride the testatrix would be invited to accompany them. The petitioner attended to the legal affairs of the testatrix. During the summer of 1948 the testatrix lived with the petitioner at a farm which the latter owned in Pembroke. It was during this period that the will, drawn by the petitioner, was executed by the testatrix. In 1949 the testatrix discussed proposed changes in her will with the petitioner but nothing further was done about it.

While the testatrix was at the rest home the petitioner visited her every day. During one of these visits the testatrix asked the petitioner to bring to her the 1948 will, which [331 Mass. 147] then was in the petitioner's possession. The petitioner complied with this request and they discussed the will and the changes which the testatrix had in mind. The petitioner made notes of the proposed changes. Since by these changes the petitioner was to be the residuary legatee, she suggested that it be drawn by another attorney. She asked Mr. Fortier, an attorney, if he would prepare a codicil but he declined on the ground that inasmuch as he was one of the conservators of the testatrix he could not properly do so. She then asked Mr. Mantalos, a Brockton attorney, to draft the codicil, and it was prepared by him in Mr. Fortier's office on the basis of information furnished by the petitioner.

After the codicil...