Tarricone v. Cummings

• Decision Date: 29 April 1960
• Parties: Theresa TARRICONE v. John F. CUMMINGS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 737

166 N.E.2d 737

340 Mass. 758

Theresa TARRICONE v. John F. CUMMINGS et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 9, 1960.

Decided April 29, 1960.

Charles A. Watson, Cambridge, for contestants.

No appearance for proponent.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and CUTTER, JJ.

WILKINS, Chief Justice.

An instrument is offered for probate as the will of David J. Cummings, late of Cambridge. Two contestants have appealed from an order denying their motion for jury issues as to due execution, testamentary capacity, and fraud or undue influence by Theresa Tarricone. The only statement of expected evidence was made by counsel for the contestants.

The proposed will in entirely in the handwriting of Theresa Tarricone, in substance the sole beneficiary, who is named executrix. A copy appears in the margin. ¹ The instrument was executed on March 6, 1959, at eleven o'clock in the forenoon, and Cummings died at four o'clock in the afternoon. He was sixty-one years of age and unmarried. A laborer in the department of public works of the city of Cambridge, he last worked on February 20, 1959. He was ill the following week with chronic bronchial asthma. This illness 'was not even sufficient to have a daily treatment of a physician.' After telling his employer that he wanted to take a week's vacation because he was not feeling well, he was driven by automobile to Spring Haven Lodge in West Alton, New Hampshire. The lodge was on the shore of Lake Winnepesaukee 'and bounded on the north by mountains.' It was owned by the proponent and her husband and served as both a ski and summer resort. The date of March 6 was between seasons. The only people available as witnesses were friends of the proponent who 'lived in the same vicinity but some distance away, a mile away either on both [sic] sides.'

'[O]ne of the witnesses allegedly read the will to the testator who was ill in bed at the time.' This witness had no conversation with Cummings at the time in regard to the will. The illness of Cummings prevented that. 'They ² were all present in the room and the will was allegedly read to Mr. Cummings.'

There is 'medical testimony that can show that he probably was disorientated at least four to six hours prior to the time of death.' The signature is unlike any he had ever executed. Since 'the signature is entirely illegible * * * he did not have the mental faculties to write out the name 'David J. Cummings,' a signature that he * * * always executed with a full hand.'

There is medical testimony that he died of two causes: 'chronic asthmatic bronchitis' and 'acute coronary pulmonary, which is a lung disease, stoppage of the blood that is circulating to the heart.' This is not an acute coronary attack at a moment's notice, but there is a period preceding death 'when the person is in the throes of death and is possibly insensible to a great number of things going on even in his presence.' '[O]n this medical evidence * * * there is enough * * * to show that David Cummings * * * would not have executed this particular type of will if he was in possession of all * * * his mental faculties.'

Cummings had six nephews and a niece. He 'had no particular aversion' to them, and was friendly with them all. He was very proud that the nephews had served in the war. He had a nephew who was killed in the service in World War II, and he had particular pride in these nephews and this niece.

The proponent is 'a long time friend' of Cummings. He often referred to her as 'a girl friend' and as a 'divorcee with whom he kept company.' She 'enjoyed a relationship with him that was far more than a friendly relationship, and unlike what is stated in the will, he always lived alone,' in his own apartment. ³ She was never there. He went to New Hampshire frequently on week ends 'and mostly in the company of the chief beneficiary.' He 'was known to have given her gifts during * * * this particular period of twenty-five years.'

At the hearing below it was agreed that the mere absence of the attestation clause in and of itself was not conclusive that the instrument was not properly executed. This agreement was in accord with our decisions. Ela v.Edwards, 16 Gray 91, 95; Barber v. Henderson, 304 Mass. 3, 22 N.E.2d 620, 127 A.L.R. 382; Goodwin v. Riordan, 333 Mass. 317, 318, 130 N.E.2d 569.

On the issues of soundness of mind and due execution the burden of proof is on the proponent. On the facts, as in our recent decision in Burns v. Dunn, Mass., 165 N.E.2d 129, these two issues are somewhat bound together. To prove that the instrument was executed according to law the proponent must prove that all the formal requirements of G.L. (Ter.Ed.) c. 191, § 1, were complied with, and that the decedent executed it with knowledge of its contents and with the intention that it should be his last will. Morin v. Morin, 328 Mass. 33, 34-35, 101 N.E.2d 362. To sustain that burden on the issue of mental competence (Santry v. France, 327 Mass. 174, 176, 97 N.E.2d 533) the proponent must meet the standard set forth by Chief Justice Qua in Goddard v. Dupree, 322 Mass. 247, 250, 76 N.E.2d 643, 645: 'Testamentary capacity requires ability on the part of the testator to understand and carry in mind, in a general way, the nature and situation of his property and his relations to those persons who would naturally have some claim to his remembrance. It requires freedom from delusion which is the effect of disease or weakness and which might influence the disposition of his property. And it requires ability at the time of execution of the alleged will to comprehend the nature of the act of making a will.'

The expected evidence is most meager as to the relations between the contestants and Cummings. The petition for probate gives Cambridge as the residence of one nephew and the niece, and Pennsylvania, California, Dorchester, and Framingham as the respective residences of four nephews. There is nothing to indicate to what extent, if any, they saw him. It cannot be said that they were shown to be the natural objects of his bounty.

The judge could believe that the purported will was read to Cummings and was understood by him. It shows some awareness of his property and of the existence of the children of his brothers. The expected evidence of disorientation for four to six hours before death was vague and did not require a conclusion of lack of testamentary capacity five hours before death. See Connolly v. Phipps, 280 Mass. 263, 266, 182 N.E. 339; Burns v. Dunn, Mass., 165 N.E.2d 129. An examination of the proffered will reveals that the signature is not wholly illegible and does not show a complete lack of capacity to write his name. Giving due weight to the decision of the judge, we do not exercise our judgment to reach a contrary conclusion on these two issues even though, had they been granted, the rulings might not have been disturbed.

As to the issue of fraud and undue influence we feel otherwise. In this Commonwealth the burden of proof upon this issue is upon the contestants. Smith v. Smith, 222 Mass. 102, 106, 109 N.E. 830; Hogan v. Whittemore, 278 Mass. 573, 578, 180 N.E. 526; Mirick v. Phelps, 297 Mass. 250, 252, 8 N.E.2d 749; O'Brien v. Collins, 315 Mass. 429, 437, 53 N.E.2d 222; Morin v. Morin, 332 Mass. 223, 224, 124 N.E.2d 251. Had a member of the bar drawn this instrument making himself substantially the sole beneficiary without affording an opportunity for independent advice, we cannot doubt that this issue should be granted. Tarr. v. Vivian, 272 Mass. 150, 153, 172 N.E. 257; Mooney v. McKenzie, 324 Mass. 685, 687-688, 88 N.E.2d 546; Reilly v. McAuliffe, 331 Mass. 144,...