Viens v. Viens

• Decision Date: 16 February 1939
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: ABRAHAM VIENS v. WILFRID VIENS & another.

302 Mass. 366

19 N.E.2d 306

ABRAHAM VIENS v. WILFRID VIENS & another.

Supreme Judicial Court of Massachusetts, Bristol.

February 16, 1939

October 24, 1938.

Present: FIELD, C.

J., DONAHUE LUMMUS, QUA, & DOLAN, JJ.

Undue Influence. Will, Validity.

Facts warranted the conclusion that the will of a widow eighty years of age was procured to be made by undue influence of one of her three sons who, contrary to strong moral claims of his brothers for equal treatment in the will, was the principal beneficiary with whom she lived, of whom she was in fear, and who prevented her talking with his brothers or changing her will.

PETITION, filed in the Probate Court for the county of Bristol on December 24 1936, for proof of the will of Olesime Viens, late of New Bedford.

The petition was heard by Hitch, J. J. D. Kenney, for the petitioner.

P. Barnet, for the respondents.

LUMMUS, J. The executor named in and proponent of an instrument purporting to be the will of Olesime Viens, a widow who died December 6 1936, at the age of eighty-five years and whose only heirs were her three sons Abraham, Wilfrid and Henry, appeals from a decree of the

Probate Court, disallowing the instrument as a will because "said instrument was not the free and voluntary act of Olesime Viens but was procured to be made through the undue influence of Abraham Viens." The instrument, after providing for masses and giving $1,000 each to Wilfrid and Henry, gives all the residue of the estate to Abraham and his wife.

No evidence is reported, but upon request under G.L. (Ter. Ed.) c. 215, Section 11, the judge made a finding of material facts. The decree cannot be affirmed unless the facts stated show its correctness. Topor v. Topor, 287 Mass. 473. Birnbaum v. Pamoukis, 301 Mass. 559 , 561-562. The contestants have the burden of proving undue influence. Bacon v. Bacon, 181 Mass. 18 , 21. Briggs v. Weston, 294 Mass. 452 , 460. Mirick v. Phelps, 297 Mass. 250 , 252.

These in substance are the facts found. The estate consists principally of three different houses and land. All had been the property of the husband of Olesime Viens. He had died intestate in 1920. The three sons conveyed their interests in the property to their mother, upon her promise that at her death it should he divided among them equally. Each had contributed to the purchase of the property while they lived with their father and mother, Abraham less than the others because he had married early and moved away. In recent years all three sons occupied tenements upon the property, Wilfrid and Henry paying no rent because repeated assurances were given by their mother to them and to other persons as late as 1932, that each should have one of the houses as his own. In reliance upon those assurances Wilfrid made repairs and improvements. Apparently Abraham too paid no rent, for after his father's death he undertook the management of the property, and his mother lived with him. At some time the mother complained to Wilfrid and Henry about the conduct of Abraham, who, she said, drank and did not pay over the rents. She expressed fear that Abraham would waste his inheritance. He and his wife stopped working in 1930. The mother was always on good terms with Wilfrid and Henry.

The instrument was executed on March 3, 1931. For the last four or five years of the mother's life -- a period that began not long after the making of the will --...