Sullivan v. Brabazon

• Decision Date: 29 June 1928
• Citation: 264 Mass. 276,162 N.E. 312
• Parties: SULLIVAN v. BRABAZON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

264 Mass. 276

162 N.E. 312

SULLIVAN

v.BRABAZON et al. ^*

Supreme Judicial Court of Massachusetts, Suffolk.

June 29, 1928.

Exceptions from Superior Court, Suffolk County; R. F. Raymond, Judge.

Proceeding by Charles S. Sullivan to probate the will of Francis W. O'Brien, deceased, contested by Elizabeth A. Brabazon and another. Probate allowed, and contestants except. Exceptions overruled.L. A. Mayberry and J. P. Feeney, both of Boston, for petitioner.

F. G. Bauer, of Boston, and J. T. Kenney, of New Bedford, for respondents.

CROSBY, J.

Issues were framed by the probate court for the county of Suffolk respecting the allowance of an instrument purporting to be the last will of Francis W. O'Brien, as follows:

(1) ‘Was said Francis W. O'Brien of sound mind at the time of the execution of the instrument which is now propounded as his last will?’ (2) ‘Was the instrument propounded for probate as the last will of said Francis W. O'Brien procured to be made by the fraud or undue influence of James J. O'Brien, Nora M. O'Brien and some person employed by and acting in the interest of said James J. O'Brien or Nora M. O'Brien, or by the fraud or undue influence of any of said persons, exercised upon the said Francis W. O'Brien?’

The jury found in favor of the proponent upon the first issue, and were directed by the judge to answer the second issue in the negative. The contestants are Elizabeth A. Brabazon and Gertrude T. Bailey, daughters of the deceased. The case is before us on exceptions to the direction of the trial judge upon the second issue, to the admission and exclusion of evidence, and to certain instructions given to the jury. The contestant Gertrude T. Bailey also filed a bill of exceptions to the refusal of a judge of the superior court to order answered certain interrogatories propounded to Charles S. Sullivan, named in the instrument as executor.

The alleged will was executed by the deceased on December 28, 1922, when he was about sixty-one years of age. He died at the Boston City Hospital January 13, 1923. The hospital record states the cause of death to be chronic myocarditis, and as a contributory, secondary cause, chronic interstitial nephritis. The instrument in question provides, in substance, for the payment of a debt due an undertaker for services rendered in connection with the burial of the wife of the deceased; for masses, $50; for an amount necessary for the perpetual care of a burial lot; for legacies of $100 to Alice T. Flynn, a sister of the deceased, and of $1 to each of his four children. The residue is left to Nora M. O'Brien, wife of his brother James J. O'Brien. There was evidence tending to show that the estate amounted to about $32,000, all of which, except about $400, consisted of his share in the estate of his deceased sister, Annie A. Hayden, who died November 25, 1922.

It is the contention of the contestants that the instrument in question was procured to be executed by the deceased as the result of a conspiracy entered into between Mr. Sullivan, James J. and Nora M. O'Brien, and that it was executed by reason of the fraud and undue influence exercised by these persons. This contention raises the question whether there was any evidence which warranted the submission of the second issue to the jury or whether the direction of a negative answer was right.

The occupation of the deceased for many years had been that of a teamster, but during the last years of his life he had been employed as a stable man or watchman in the care of horses. His wife died in 1904, and thereafter he and his children continued to live together for about two years, but he ill treated them and they were afraid of him, and in 1906 his three daughters and a son went to live with their uncle, James J. O'Brien, and his wife, at their request, and occupied rooms on the top floor of his house, where they remained for eleven months, without any charge for rent. This uncle and his wife had five small children. During the time the contestants lived with their uncle one of the girls was employed, receiving $6 a week. Afterwards their Uncle James and his wife moved to a larger house and the children of the decedent lived near them. From the death of their mother to the present time it appears that James J. O'Brien and his wife treated the children with kindness and were always interested in their welfare. There was evidence that for many years before their father's death the children rarely ever saw him or knew where he lived; that at times he was in needy circumstances, but they never rendered him any assistance; that the only aid furnished him by any relatives was given by his brother James who, upon the death of the deceased, selected a casket and arranged for a priest, and for the funeral which was held at his house; and that he notified the children of their father's death.

Mrs. Brabazon testified that she and her sister Mrs. Bailey called to see their father on two occasions when he was sick in 1906. She testified that when they called upon him the first time he accused their Uncle James of breaking up his home and taking his children away from him and said that their uncle and his wife would pay dearly for it; ‘I said, ‘Look here, father, you know what you have done and you know that it is all your own fault, and that you had nearly a year after that to do better and you didn't do it, so you can't blame Aunt Nora and Uncle Jim for it;’' that she did not see him again until 1910 when her brother was killed; that after the brother's funeral her father came to see her and made inquiry as to the particulars concerning her brother's death. She further testified that the next time she saw her father was after the death of her aunt Mrs. Hayden which occurred in November, 1922, when she saw him at her wake and at her funeral; that on those occasions she spoke to him; that he was very feeble and did not seem to know her; that she did not at that time try to find out where he lived in South Boston although he lived a short distance from her house; that she did not see him again until she was notified by her Uncle James that he was very ill, at the hospital, and, accompanied by her sister, Mrs. Bailey, she went there to see him. She testified that he was very sick; that she spoke to him but he made no reply; and that she asked him if he had had a priest and he shook his head. He died the next day.

The testimony of Mrs. Bailey did not differ in substantial particulars from that of Mrs. Brabazon. When the latter saw her father as above testified to by her, Mrs. Bailey testified that she was present, but it did not appear that Mrs. Bailey had seen him on any other occasions. Both contestants testified that they did not know where their father was living from the year 1910 until their aunt died in 1922, and made no effort to find him, although it appears that they all lived in Boston after the mother died until the father's death. They further testified that they never did anything for him after they went to live at the house of their uncle. The evidence showed that for several years before his death he suffered from kidney trouble which seriously affected his health; but there was evidence that from August, 1919, until the last of November, 1922, and shortly before the instrument in question was executed, he cared for twenty-seven horses.

There was evidence which tended to show that the decedent was of a stubborn disposition, that he was ‘cranky’ and inclined to have his own way; that on the day the instrument in question was executed he went to the office of the proponent Mr. Sullivan, whom he had known for several years and with whom he had some business in connection with the estate of his sister, Mrs. Hayden, and stated to Mr. Sullivan that he was not feeling well and would like to make a will and dispose of his share in the property inherited from his sister; that his brother James came in while he was there; that the decedent said he would like to give the property to his brother James; that the latter said he did not want it, and that the deceased said, ‘Well I want you to have it. You have been kind to me, and you have been interested in me, and whatever is coming in this estate is due to your efforts, and that of Judge Sullivan, and I wish to give it to you;’ that James replied that he did not want it and did not want anything to do with it, and then walked out. If this evidence is disregarded, there is nothing to show that James O'Brien was present when the will was drawn and executed. The circumstance that it was witnessed by the clerk of the court over which Judge Sullivan presided, by a former assistant clerk of that court, and by the probation officer of the court, who was a sister of the judge, is not evidence of undue influence exerted upon the deceased by the judge.

[1] A careful examination of the entire record fails to show any evidence whatever of a conspiracy as charged, or that James J. O'Brien, Nora M. O'Brien or Charles S. Sullivan influenced or attempted to influence the deceased to execute the instrument; nor is there any evidence from which it could be inferred that such influence was exerted by any of them. It follows that the trial judge rightly directed the jury to answer the second issue in the negative. Upon this question the case is governed in principle by Neill v. Brackett, 234 Mass. 367, 126 N. E. 93.

[2] During the course of the trial many exceptions were saved by the contestants to rulings of the judge respecting the admission and exclusion of evidence. The first exception is to the admission of a hospital record; the second is to the exclusion of another hospital record. Both relate to the deceased and refer to relatives or friends to be notified by the hospital authorities. Whether the rulings respecting either of these hospital records were or were not erroneous need not be decided. Their admission or exclusion had no material bearing upon any issue involved;...