Smith v. Brewster

Braley, J. This is an appeal from the denial of a motion by the contestant and appellant to frame issues for trial by jury, whether the testator was of sound mind when he made his will, and whether he executed the instrument with the understanding and purpose that it should be his last will and testament, and whether the will was procured to be made by the fraud or undue influence of Blanche Bennett, Daniel Moore, Josephine Newton, or either of them. We assume on the record, notwithstanding the agreement of counsel to the contrary, filed after the death of the judge of probate, that the “ statement of facts ” found by him “ on motion for jury issues,” is a summary of the evidence of witnesses who testified at the hearing. It was said in Cook v. Mosher, 243 Mass. 149, 152, 153, “ It is the duty of this court to examine the evidence, to reach its own conclusion as to the facts, and to decide the case according to its own judgment, giving due weight to the finding of the judge. But a finding made by him after a hearing in which witnesses have testified orally before him will not be reversed unless plainly wrong.” While proof of undue influence ordinarily must depend largely on circumstantial evidence, a careful examination of the testimony fails to show, that the denial by the judge of probate of that issue, as well as the issue whether the testator executed the instrument with an understanding and purpose that it should [399] be Ms last will and testament, can be held to have been plainly erroneous, even if the testator subsequent to the execution of the will said it “ was not as he wanted it.” Connell v. Sokoll, ante, 203. Hoffman v. Hoffman, 192 Mass. 416. Emery v. Emery, 218 Mass. 227. Barker v. Comins, 110 Mass. 477, 488. But on the issue of testamentary capacity the record tends to show that the testator was a sick, decrepit old man suffering from Bright’s disease and hardening of the arteries, and that he was somewhat feeble-minded. The testimony of Ms attending physician was to the effect, that he considered the testator a “ moron ” oMy “ ten per cent normal ” and “ it seemed doubtful if he was able to manage Ms business affairs.” The evidence of another witness was “ that along toward the last he was failing rapidly.” It is plain there was substantial evidence for the consideration of a jury, whether Ms mental soundness was sufficient to enable him to make a will. Whitney v. Twombly, 136 Mass. 145, 146, 147. The order denying the motion on the second issue is reversed, but as to the first and third issues it is affirmed, and the case is to stand for further proceedings in the court of probate not inconsistent with tMs opinion. Ordered accordingly.