Wellman v. Carter (In re Carter's Estate)

Decision Date25 May 1934
Citation190 N.E. 493,286 Mass. 237
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Appeal from Probate Court, Suffolk County; Dolan, Judge.

Proceedings in the matter of the estate of Nellie Parney Carter, deceased, wherein Arthur H. Wellman filed a petition for the probate of an instrument as the last will of the decedent, and wherein George Grant Carter and others contested the probate of the alleged will. From a decree denying their motion for jury issues, the contestants appeal.

Decree affirmed.R. T. Bushnell, J. G. Bryer, T. L. Thistle, W. G. Thompson, and R. Spring, all of Boston, for George Grant Carter and others.

D. E. Hall, P. N. Jones, and B. C. Perkins, all of Boston, for petitioner.

C. P. Curtis, of Boston, for James Trimble Brown and another.

P. A. Atherton, of Boston, for Proprietors of Arlington Street Church.

P. Ketchum, of Boston, for Cora Lee Webber and others.

CROSBY, Justice.

This is an appeal by the contestants, who are five of ten first cousins and next of kin of the late Nellie P. Carter, from a decree of the probate court denying their motion for the framing of jury issues in respect to the execution of an instrument offered for probate as the will of said Nellie P. Carter. The issues sought are as follows: ‘1. Was the instrument purporting to be the last will of said Nellie Parney Carter, dated April 8, 1931, executed according to law? 2. Was the said Nellie Parney Carter at the time of the execution of the said alleged will of sound mind? 3. Was the execution of said alleged will * * * procured by the fraud or undue influence of Arthur H. Wellman, Sargent H. Wellman, Mary MacFarlane, Joseph Daniels Leland, James Trimble Brown, Elsa Tudor Leland, or any of them, exercised upon the said Nellie Parney Carter?’ The first issue need not be considered as no question is now raised respecting the execution of the instrument.

Miss Carter was a maiden lady who resided in Boston all her life and died January 15, 1933, in her eightieth year. The cause of death was coronary thrombosis. Her father died in 1897. Upon her mother's death, in 1904, Miss Carter inherited a substantial amount of property from her father's estate. She inherited additional property from an older sister who died in 1912. A brother died in 1870. She thus became the last of three children. Her property increased considerably and in 1930 reached a value of over $7,000,000. At the time of the execution of the instrument offered as her will, the value was over $4,600,000. This instrument leaves $3,983,000 to seventy-six beneficiaries, and the residue, of the then value of about $150,000, to four institutions including the Boston Museum of Fine Arts and Amherst College.

Arthur H. Wellman, Esq., who is the proponent of the instrument offered for probate, is named as the sole executor. He had been Miss Carter's attorney and adviser since 1910, and was left $500,000. He is named in the motion for jury issues. His wife, Jennie L. Wellman, was left $100,000. His son, Sargent H. Wellman, who is associated with his father in the practice of law and is also named in the motion, was left $100,000, and other members of the Wellman family were left sums amounting to about $160,000. Mr. Wellman's secretary, MacFarlane, who appears to have performed many services for Miss Carter, was left $150,000, and is also named in the motion. Members of the Leland family, with which it is stated in the offer of evidence Miss Carter and her family had been on terms of intimacy since 1872 or 1873, were given bequests in the amount of $1,190,000, included therein being bequests of $200,000 each to Joseph Leland and Elsa, his wife, named in the motion. James Trimble Brown, also named in the motion, is the son of an old friend of Miss Carter; this friend is given $50,000, and Brown, between whom and Miss Carter close personal relations existed, is left $100,000. Servants and attendants upon Miss Carter were generously remembered, in some instances receiving $100,000. Bequests amounting to $345,000 were left to various charitable and educational institutions. The sum of $5,000 was left to each of the ten first cousins living at the time of Miss Carter's decease. The seventy-third article of the instrument provided that if any person named as a legatee should oppose the probate of the instrument or should in any way object to its validity as a will, the legacy to such person would be revoked.

The first question to be considered is the sanity or mental capacity of the decedent. The principles governing the action of a judge of probate in passing upon such a motion were fully set forth in Fuller v. Sylvia, 240 Mass. 49, 53, 133 N. E. 384, and the question before this court on an appeal from a denial of a motion for such an issue heard upon statements of counsel has recently been stated in Cranston v. Hallock, 281 Mass. 182, 183 N. E. 351, and need not here be repeated. Having these principles in mind we consider the statements of counsel as to expected evidence. Counsel for the contestants stated that ‘eminent psychiatrists,’ named to the judge, would testify that in their opinion the decedent was insane and could not have possessed testamentary capacity at the time of the execution of the instrument. This opinion was based on various matters expected to be proved in court in connection with the decedent's mentality, namely, that she was extremely forgetful respecting many things; that she attempted to pay bills that previously had been paid; that she kept large sums of money and uncashed refund checks in her suite; that after an automobile accident, in 1924, she had little or no memory of the details respecting it; that she had delusions that persons outside her windows were in collusion with her maid conspiring to rob her; that she was so apprehensive of being burned to death that she never would go to bed; that she was afraid that her coffee at the hotel where she lived would be tampered with. The alienists also considered it important that she made purchases alleged to be not in harmony with her dress and bringing up, and purchases of thousands of dollars worth of clothing, laces, playing cards, picture books, trinkets and jewelry, many of them being placed in storage without being used; the collecting of purchases never used, and of no historic or other value, representing to the alienists the impulses of a disordered mind. It also was stated that she made very large tips, and gifts to a group of sycophants out of proportion to any service they could have rendered, which showed a lack of judgment or delusion to compensate for a feeling of inferiority; that her spending, which might be termed excessive and unreasonable, and her large annual income contrasted with her insistence on various occasions that she had little or no money, and in connection with other factors showed a diseased mind. There was offered as further evidence of mental disorder that over a long period of time she would occasionally go into a fit of ‘tantrums,’ her mind dwelling for hours on a trivial subject, including a berating of her sister Lizzie when living; that she was subject to moments of confusion; that she could not comprehend the simplest incident; that she talked in monosyllables and would not carry on connected conversation; that her apartment contained odd and miscellaneous pieces of furniture, was in confusion, and basketfuls of stock quotations were cut out and saved without order or sequence, and were of no use to any one. Certain other offers of evidence made by counsel for the contestants have been considered but need not be referred to.

The proponent's statement of evidence which he proposed to offer presented an entirely different picture of the mental condition of the decedent. She was represented as a ‘well and sturdy New Englander,’ possessed of a sound mind and good intelligence, somewhat shy, but extremely found of a small circle of friends to whom it pleased her to make generous gifts, and substantial financial support; and as a patron of the arts, and an admirer of beautiful things. These various elements were not presented to the psychiatrists whom the contestants proposed to call as witnesses when forming their opinion that the decedent lacked testamentary capacity. They did not have before them all the facts concerning the decedent which might have been found to be true. Their opinion was subject to the infirmity pointed out under analogous circumstances in Taylor v. Creeley, 257 Mass. 21, at pages 26 and 27,152 N. E. 3, 4, where it was said: ‘The question stated and assumed as true only the facts consonant with the answer desired, and it omitted other facts which were practically admitted by the contestants and which, if stated, might well have led to a different answer. * * * The jury should have been instructed that the answer should be given no weight as evidence of the mental condition of the testator at the date of the execution of the will unless they found all the facts therein assumed to be true.’ See, also, Wellock v. Marsh, 277 Mass. 416, 178 N. E. 727. Further referring to expected evidence which the proponent was ready to present, it was stated that during the years prior to and subsequent to the execution of the instrument the health of the decedent was generally very good; that in 1926 she was visited once or twice by a physician for treatment for a heavy cold, and in 1930 she had bladder trouble, due to a large abdomen, which required medical attention. In 1931 she fell and called Dr. Brackett, an orthopedic surgeon, who continued to visit her a number of times to adjust an abdominal support. He visited her on the day before the execution of the instrument. She intelligently discussed a subject of common interest, and her reasoning faculties ‘were perfectly all right.’ In July, 1932, she was attended by Dr. David Cheever for an attack of indigestion. This was her last...

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