Smith v. Patterson (In re Patterson's Estate)

• Decision Date: 24 May 1934
• Parties: SMITH v. PATTERSON. In re PATTERSON'S ESTATE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

286 Mass. 356

190 N.E. 536

SMITH

v. PATTERSON.In re PATTERSON'S ESTATE.

Supreme Judicial Court of Massachusetts, Middlesex.

May 24, 1934.

Appeal from Probate Court, Middlesex County; Campbell, Judge.

Petition by Chiron W. Smith for proof of the will of George Lawson Patterson, deceased, late of Marlborough, contested by Alice M. Patterson. From a decree entered by order on motions to frame issues to be tried by jury, both proponent and contestant appeal.

Decree amended, and, as amended, affirmed.

H. F. R. Dolan, of Boston, for Chiron W. Smith and another.

H. F. Butler, of Boston, for Alice M. Patterson.

W. E. Clapp, W. Temple, and E. C. Mack, all of Boston, for respondent.

RUGG, Chief Justice.

George L. Patterson died in Marlborough in our county of Middlesex in October, 1932, leaving an instrument purporting to be his last will, which has been offered for allowance by the petitioner, named therein as executor. The decedent was about fifty-eight years of age at his death. His only heir at law is an adopted daughter. The decedent and his wife adopted this child when she was about seven years old. She was about eighteen years old at the time of his death. The wife died within two or three years after the adoption. The value of the estate is approximately $50,000.

The adopted daughter through her guardian contests the allowance of the will and has filed a motion for the framing of issues to be tried to a jury. The trial judge did not frame issues as to the due execution of the will, or as to his soundness of mind, but allowed an issue as to the fraud or undue influence of named persons in procuring the making of the will. The appeal of each party brings the case here.

The principles of law governing the framing of issues in a case like the present are established and need not be repeated at length. Fuller v. Sylvia, 240 Mass. 49, 133 N. E. 384;Cook v. Mosher, 243 Mass. 149, 137 N. E. 299; Clark v. McNeil, 246 Mass. 250, 140 N. E. 922. The motion was heard on oral statements of expected evidence presented by the attorneys for the contestant and the proponent. Statements in opposition to the motion, as well as those in its support, may be considered. Briefly stated, the inquiry for this court is whether there appears upon the record to be a genuine question of fact supported by evidence of such substantial nature as to afford ground for reasonable expectation of a result favorable to the party requesting the framing of issues. Johnson v. Loring, 267 Mass. 310, 311, 166 N. E. 622;Swift v. Charest, 268 Mass. 47, 167 N. E. 250;Bacigalupo v. Cuneo, 277 Mass. 474, 178 N. E. 623;Connolly v. Phipps, 280 Mass. 263, 265, 182 N. E. 339;Cranston v. Hallock, 281 Mass. 182, 183 N. E. 351.

Plainly there was no ground for the framing of an issue as to the due execution of the will. It was drafted under the direction of a trained lawyer who had long been a friend of the decedent and who read it aloud to him before it was signed. The circumstances that the decedent had lost the sight of one eye and may have had difficulty in the use of the other are quite insufficient to require the framing of this issue. Collis v. Walker, 272 Mass. 46, 172 N. E. 228;Hogan v. Whittemore, 278 Mass. 573, 577, 180 N. E. 526.

It cannot be said that there was error in the refusal to frame an issue as to soundness of mind. It was stated in behalf of the contestant that two physicians who had attended the deceased in Maine, where he spent some time, would testify that he had not been of sound mind and that there was evidence that as he grew older he was careless of his personal appearance and was eccentric and had arteriosclerosis. His family physician in Marlborough for about thirty years and his family physician in Maine would testify that he was of sound mind; and many acquaintances that they saw in him no conduct indicating abnormal tendencies. While he was not an ordained clergyman, he was a lay preacher and devoted himself entirely to religious and charitable work. The will offered for allowance was dated on August 18, 1932. By it family books and heirlooms and a life estate in the home of the decedent, assessed at $6,000, were given to the adopted daughter. The other chief beneficiaries of the will were four charities in which the decedent was interested. By a previous will dated July 8, 1932, and by three still earlier wills made after the death of the decedent's wife, the bulk of his estate had been given to or for the benefit of the adopted daughter. The four charities to which the residue of the estate was given by the will here in question had been beneficiaries in all previous wills. Upon this state of the record there was no error of law in the denial of this issue. Johnson v. Jenks, 253 Mass. 25, 147 N. E. 844;Johnson v. Talbot, 255 Mass. 155, 157, 150 N. E. 900;Taylor v. Creeley, 257 Mass. 21, 29, ...