Whitcomb v. Whitcomb

• Decision Date: 24 February 1910
• Citation: 205 Mass. 310,91 N.E. 210
• Parties: WHITCOMB v. WHITCOMB.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

205 Mass. 310

91 N.E. 210

WHITCOMB v. WHITCOMB.

Supreme Judicial Court of Massachusetts, Middlesex.

February 24, 1910

COUNSEL

Bartlett &amp Anderson, for appellant.

Fred L Norton and Walter A. Ladd, for appellee.

OPINION

SHELDON J.

There is no doubt that undue influence may be exerted upon a testator either by fraudulent means or devices or by physical or moral coercion practiced upon him without any actual deception. Wingrove v. Wingrove, 11 Prob. D. 81; Davis v. Calvert, 5 Gill & J. 269, 25 Am. Dec. 282; Stewart v. Elliott, 2 Mackey (D. C.) 307. But even if we should say that for this reason the charge of the justice went too far as an abstract proposition, we could not sustain these exceptions. The bill of exceptions merely states as to this question that at the trial 'there was evidence tending to show that the execution of the will was procured through the fraud or undue influence of Emma F Whitcomb.' There is a similar statement as to the execution of the codicil and nothing more. All of this evidence may have related to undue influence exerted by fraudulent devices, and so the charge of the justice may have been exactly appropriate to the state of the evidence before the jury. If that be so, no injury could have been done to the contestant. But it is always incumbent upon the excepting party to show that he was aggrieved or injured by the ruling to which he alleges exception. Chandler v. Jamaica Pond Aqueduct, 125 Mass. 544; Linton v. Allen, 154 Mass. 432, 440, 28 N.E. 780; Smith v. Jagoe, 172 Mass. 538, 52 N.E. 1088. But we prefer to consider the general question.

In our opinion, the procuring of the execution of a will by means of undue influence is an act which partakes of the nature of a fraud, an act which necessarily imports at least a constructive fraud upon the party upon whom it is practiced. This is of course so if the undue influence is, as will often be the case, gained or exercised through any active deception or fraud, so that the deception is itself an essential element of the undue influence. But even when this is not the case, when there is merely such a dominating and controlling influence exerted over the mind and will of the testator by means of excessive importunity or of the mastery which one mind may sometimes gain over a weaker one, yet the object which is consciously sought and gained is to lead the testator to make a will which is different from the one he otherwise would have made, which is not the expression of his own desires, but which is dictated to him and imposed upon him by the person who thus influences him, which, as was said of the will of King Edward VI of England, may be his testament, but is the will of the person who has thus dominated his mind and controlled his actions. All that is done in such a case, although no deception may have been practiced upon the testator, although he is rather the victim of force than of fraud strictly so called, is done for the sake of palming off as his last will that which is not really such. It is a fraudulent purpose that is aimed at; and the guilty purpose stamps with its own character all the means which are employed for its attainment. This is none the less a fraud upon the testator, by causing him to make different dispositions of his property from those which otherwise he would have made, that it is also a fraud upon his heirs or those whom he would have made the objects of his bounty, even though the pecuniary loss may fall wholly upon the latter.

This court has already taken the view which we have stated. In Phillips v. Chase, 203 Mass. 556, 89 N.E. 1049, the undue influence by which the respondent had induced his wife to address her petition to the probate court was merely a moral coercion exerted over her. There was neither claim nor evidence that any deception had been practiced upon her to lead her to do as she did. She was simply forced to act against her will. It was held (page 560 of 203 Mass., page 1049 of 89 N. E.) that this was like the case of undue influence practiced upon a testator, and (page 563 of 203 Mass., page 1051 of 89 N. E.) that the act of so dominating his wife's will as to force her against her will to bring the petition was 'a gross fraud upon his wife' as well as a fraud upon the court to which the petition was presented as her voluntary act. That case is decisive of the principle here stated. So it was said by Hoar, J., in Baldwin v. Parker, 99 Mass. 79, 84, 85, 96 Am. Dec. 697: 'The objection to a will that it was obtained by undue influence is not one which it is easy to define with precision. The term seems to include both fraud and coercion.'

The weight of authority in other jurisdictions is to the same effect. In many cases it is said that undue influence is a species of fraud, or that it partakes of the nature of fraud. Barry v. Butlin, 1 Curteis, 637, 647; Mackall v Mackall, 135 U.S. 167, 172, 10 S.Ct. 705, 34 L.Ed. 84; Towson v. Moore, 11 App. Cas. (D. C.) 377, 381; Grove v. Spiker, 72 Md. 300, 301, 20 A. 144; Marshall v. Flinn, 49 N.C. 199; Wright v. Howe, 52 N.C. 412; ...