Davenport v. Johnson

Morton, J. This is an appeal from the allowance of the will and codicil of one Alma J. Davenport. The case was submitted to a jury on the usual issues, and the jury found against the will and codicil on the issue of fraud and undue influence, and for the will and codicil on the issues relating to soundness of mind and to the understanding and purpose with which the instruments were executed by the testatrix. The case is here on exceptions by the executor to the admission of certain evidence, and to certain rulings and instructions that were given. The first exception relates to the admission of evidence of the amount of the estate of the husband of the testatrix. There were also other exceptions of the same general nature. These exceptions may be considered together. We think that the evidence was rightly admitted. William W. Davenport, one of the persons charged with exercising fraud and undue influence, was the principal residuary legatee under the husband’s will. He was also sole residuary legatee under the will and codicil of the testatrix, and as such would receive a large sum if they were upheld. The widow did not waive the provisions, of her husband’s will, and there was testimony tending to show that when she executed the will and codicil she had a brother and nephews and nieces and grandnephews and grandnieces living, and that they were all of limited means and that for aught that appeared she was in friendly relations with all of them. In passing on the question of the soundness of mind of the testatrix, and whether undue influence had been exercised over her, the jury had a right to consider whether the will was under all the circumstances a reasonable will and one such as a person of sound mind and free from undue influence would have made. The fact that the will and codicil were or might be found to be [272] unreasonable in the opinion of the jury would not of itself justify them in finding that it was the product of an unsound mind or of undue influence. But as bearing upon the question whether the will was a reasonable will and such as a person of sound mind and free from undue influence would have made, evidence not only of the amount of her own estate was competent, but, also, evidence of the amount of her husband’s estate and of the amount to which William W. Davenport was or would be entitled under the husband’s will. If he was entitled to receive under the husband’s will a large amount, we cannot say that the jury were not justified in finding, if they did so find, that the more reasonable explanation of the large bequest to him in the will and codicil of the testatrix was that it was procured by undue influence on his part over her. There was testimony from which the jury could have found that both he and the testatrix knew the contents of the husband’s will before his death, and at the time of the execution of the will and codicil, and the approximate amount of the estate. Further, as tending to show his relations with and influence over the testatrix, it was competent, we think, for the appellants to show if they could, that he had induced her not to waive the provisions of her husband’s will, and that the amount of her husband’s estate and the share to which he would be entitled were admissible for that purpose. William W. Davenport was called as a witness by the appellants, and they offered to show by him that he had prevented the relatives of the testatrix from calling upon her at various times between the date of the codicil and her death, and the next exceptions relate to the admission of the question, “ At any time after the execution of the codicil to the will did you keep her relatives from seeing her?” to which he answered, “ Yes,.sir,” and to the admission of the question, “ And did you give directions to persons of your household not to let some' of her relatives see her ? ” to which he answered, “ One and one only. One relative. Not to let one relative in in her feeble condition.” It does not appear when the events referred to in the questions and answers took place. For aught that appears, they might have happened at or about the time when the codicil was executed, in which case the evidence was clearly admissible. Moreover testimony [273] of the kind referred to in the offer was admitted in Shailer v. Bumstead, 99 Mass. 112,129, 130. The last exception was to certain instructions requested by the appellants and given by the presiding justice. We think that the instructions followed the law as laid down in Woodbury v. Woodbury, 141 Mass. 329, and Ogden v. Greenleaf, 143 Mass. 349, the latter case being referred to with approval in Sumner v. Crane, 155 Mass. 483, 484, and Jones v. Simpson, 171 Mass. 474, 476. The jury were expressly told that whether the instructions were applicable to the case before them depended on whether they found “ the facts in evidence ... to embrace and cover the assumptions of fact contained in this ruling.” Where the instructions requested state the law applicable to the case correctly, it is at the option of the presiding justice whether he will give them in the exact language requested, or whether he will give them in his own language. There is no valid objection to either course. Bacon v. Bacon, 181 Mass. 18. Richardson v. Bly, 181 Mass. 97. Exceptions overruled.