Neill V. Brackett

Carroll, J. When this case was before us, Neill v. Brackett, 234 Mass. 367, the executor’s exceptions were sustained. The case then went to trial in the Superior Court on the issue of the fraud and undue influence of Mary E. ■ Fallon and Sally S. D. Richards in procuring the will of Edward E. Richards. The court ruled that a finding of undue influence would not be warranted, and directed the jury to return a negative answer to the issue submitted: “Was said alleged will procured to be made through the fraud or undue influence of Mary E. Fallon and Sally S. D. Richards, or either of them? ” Many of the facts in evidence are referred to in Neill v. Brackett, supra. At the second trial there was additional evidence.. One Hall testified that in the year 1913 he had a talk with the testator and he told the witness, in speaking of Mrs. Richards, that he (the testator) was “sorry that he got married to this girl. . . . She was raising hell with him. . . . She was wasting and spending his money,” she “was keeping him out nights to social functions and he was losing his health and he was very unhappy.” The testator also told the witness he had made a will and “had put Bertha’s and Gladys’ property in trust, at the solicitation — to please his wife.” This testimony was not introduced at the first trial. George F. Holl, a witness called by the appellants, testified — 537 — that in the course of conversation with the testator in the year 1915 (the will in question was executed January 30, 1915), he stated he had made a new will; that “his wife piad] made him do things he hadn’t ought to do.” This testimony was not given at the former trial. In addition to this there was evidence from an expert not called at the former trial, indicating that the testator in 1915 had a weakened mind and was susceptible to his wife’s influence. If this evidence were believed, the jury could say it disclosed a mind susceptible to the control of others, and taken in connection with the other evidence tended to show that the testator was one who could easily have been made the victim of fraud or undue influence. See Aldrich v. Aldrich, 215 Mass. 164, 170. There was further evidence not appearing at the former trial. In 1914, when there was some trouble in the Richards house about hot water heating, and while the man in charge of the work was explaining the matter to Mrs. Richards, Mr. Richards “started to say something,” when his wife “took him by the arm and led him out of the kitchen,” and said, “Now Eddie, you go along. I’ll take care of this;” that in the same year when a stove was being installed, she said to her husband, “Eddie, you old fool, get out of here. You don’t know what you are talking about,” that the testator said nothing to this and left the room; and on other occasions that she talked sharply to him; that at a birthday party given to the testator he didn’t seem happy and Mrs. Richards “was criticizing him every move he made.” During the last illness of Mr. Richards the nurse who was in attendance from August 12 to August 25, 1917, and who was not a witness at the former trial, testified that on one occasion when Mrs. Richards said, “I have just had a telephone call from the solicitous daughters. ... If they think they are going to get anything out of the estate, they will get it from me, because I control the will,” and that Mrs. Richards constantly ridiculed the testator’s daughters. A day or two before Mr. Richards died Mrs. Richards was in his room trying to rouse him. She pinched him, and when the nurse remonstrated Mrs. Richards said, “this Preferring to a document] must be signed today.” She took his hand and guided it, in order to sign the paper. Mr. Richards was conscious at the time. He groaned, and in a distressed manner protested against — 538 — the conduct of his wife. On another occasion, when Mrs. Richards desired her husband to sign a paper, she guided his hand while he wrote his signature, and while he was moaning and protesting she shook him, put her nails into him and pinched him, leaving a black and blue bruise on his flesh. At the close of the evidence the judge ordered the evidence as to the declarations of Mrs. Richards after the execution of the will, to be stricken out as having no tendency to establish the issue on the part of the contestants. He also ordered stricken out the evidence bearing on the conduct of Mrs. Richards as to the management of her husband’s property, stating that he did that on the authority of Shailer v. Bumstead, 99 Mass. 112; and struck out the evidence of Mrs. Richards’ acts and conduct in August, 1917, as testified to by the nurse. In our opinion the evidence of the acts and conduct of Mrs. Richards in her treatment of her husband when he was sick and in pain was competent as showing her utter indifference to his welfare and her control of him and her disposition to exercise this influence when it suited her purpose. Emery v. Emery, 222 Mass. 439. As we construe the bill of exceptions, the trial judge did not intend to exclude this evidence of the acts and conduct of Mrs. Richards showing her power over the testator on the ground that it was remote in time. The judge excluded this evidence for the reason that it had no tendency to show undue influence and not in the exercise of his discretion because of its remoteness. The case should have been submitted to the jury, if the new evidence at the second trial, had it been produced at the former trial, in addition to that offered, would have resulted in a different conclusion by this court. Clark v. New England Telephone & Telegraph Co. 231 Mass. 546. Considering this additional evidence offered at the second trial together with the other evidence introduced, we think the issue should have been submitted to the jury. The evidence at the second trial tended to show that Mrs. Richards exercised a control over her husband, and that he was in such a mental condition that he was under her influence. This evidence in connection with the testimony of her attitude toward her husband’s children by his former wife, the amount and value of the property deeded to her by her husband, the quarrels between her and the testator about her extravagance, — 539 — and the criticism of him in public, in our opinion was evidence to warrant the submission of the case to the jury; and we cannot say that as matter of law there was no evidence that the will was procured by the undue influence of Mrs. Richards. In view of the fact that there must be a new trial, we consider some of the questions raised by the appellant’s exceptions. The declarations of Mrs. Richards, Miss Fallon and Miss Neill, made after the execution of the will and indicating fraud or undue influence on the part of Miss Fallon and Miss Neill, practised on the testator, were properly excluded. Their statements could not be permitted to prejudice the rights of the parties in interest, and as we interpret the bill of exceptions, these admissions were excluded on this ground. Shailer v. Bumstead, supra. Old Colony Trust Co. v. Di Cola, 233 Mass. 119, 123. There was no error in excluding the testimony of the witness Holl in regard to the effect upon the adjoining property of Dr. Porter, the testator’s son-in-law, by the erection of an apartment house on the Richards land. The witness was permitted to testify that at the request of the testator he examined the property and reported that the erection of the apartment house on the lot would spoil the Porter property, and the testator replied he didn’t care about that. His reasons for deciding that the erection of the building would injure the property of the Porters was properly excluded. Dr. Cooper, the testator’s family physician, was asked: “In 1911, at the time — or about September, 1911, when you finally severed your professional connections' with the Richards family, or when they were severed, would you say that at that time Mr. Richards possessed such deterioration of his mental faculties as to render him susceptible of being easily influenced by a wife and a woman whom he had had in his employ for many years, and in whom he had apparent confidence?” This was excluded. It appeared that the witness was the testator’s family physician for some time prior to the year 1911. As the family physician, the witness could testify to the testator’s mental condition. Old Colony Trust Co. v. Di Cola, supra. Although this question was excluded, the appellants were not denied the opportunity of showing by this witness the condition of the testator at the time when the witness was acting as the family physician, the court — 540 — stating that as such family physician he could give his opinion as to the condition of the patient at the time he was acting as the family physician. We find no error in this ruling of the court. The question put to the witness McICay (a lay witness), “Did you observe whether he [the testator] was firm or weak in his decision?” and the answer which was given, subject to the appellant’s exceptions, “Why firm, I should say,” were not incompetent. The question called for a statement of fact, and not for an opinion, and the answer was one of fact. The evidence of the witness Russell (another lay witness) that he did not notice that the testator had any appearance of marked mental decline, was also admissible for the same reason. Gorham v. Moor, 197 Mass. 522, 524. Raymond v. Flint, 225 Mass. 521. Jenkins v. Weston, 200 Mass. 488. Johnson v. Foster, 221 Mass. 248, 250, 251. There was no error in calling the attention of the witness Dockerty to his former testimony for the purpose of refreshing his recollection. Jessie W. Neill, one of the executors, was called by the appellants. They sought to show that through fraud the good will of the Richards Real Estate Company, a corporation through which the testator carried on his real estate business, had been transferred to the witness and one Starrett. The evidence was excluded. It had no bearing on the question whether the testator was unduly influenced in making the will, and so far as it had any tendency to affect the credibility of the witness, its admission was within the discretion of the trial judge. Fisher v. Ford, 232 Mass. 56. And for the same reason there was no error of law in excluding the evidence of the conduct of Mrs. Richards, Miss Fallon and Miss Neill in the management of the business of the testator after his death. On all the evidence presented at the second trial of this case, there was nothing to show that the will of the testator was procured by fraud or undue influence of Mary E. Fallon, but in our opinion there was some evidence of the fraud and undue influence of Sally S. D. Richards, and on this issue the case should have been submitted to the jury. See Clark v. New England Telephone & Telegraph Co., supra. Exceptions sustained.