Old Colony Trust Co. v. Pepper

DeCourcy, J. This is an appeal from an order of the Probate Court denying issues for a jury trial, on the petition for allowance of the will of Rufus E. Lawrence, late of Chelsea. The contestant Emma K. Pepper is sister, sole heir at law and next of kin of the deceased; and moved for the framing [265] of four issues. The first, relating to the execution of the instrument, is expressly waived. The meaning and propriety of the fourth have not been argued, and it must be treated as waived. The second and third relate to the issues of soundness of mind and undue influence. Although the question is before us on appeal substantially as it was before the Probate Court, where the motion was heard on statements of counsel without oral testimony, yet, in view of the element of discretion involved in the action of the judge of probate, his order respecting the framing of issues ordinarily will not be reversed if it is supported by the statements of expected proof. Cook v. Mosher, 243 Mass. 149, 153. Connell v. Sokoll, 247 Mass. 203. The proposed issue as to undue influence exercised by Daisy Edith Stillings “ or any other person ” might well have been denied as too general and indefinite. See Fuller v. Sylvia, 240 Mass. 49, 55. But, aside from that, on the alleged facts we cannot say that the issue ought to be submitted to a jury. Mrs. Stillings was the housekeeper of the deceased; she collected the rents on his real estate, and kept his books. She is not a beneficiary under the will. Even if she became unfriendly to the contestant when deprived by Mrs. Pepper of the collection of certain rents, it does not appear that she did anything designed to prejudice the testator against his sister. The reason given by him for making no gift to Mrs. Pepper, that she was “ amply provided with this world’s goods,” was substantially correct. There is a significant absence of any specific facts tending to show that the testator was likely to be influenced by Mrs. Stillings in the disposition of his property, or that she attempted to exert such influence, such as ordinarily appears in will contests. On the issue of the testator’s testamentary capacity, the main facts alleged are that he was suffering from tuberculosis, and had a violent hemorrhage of the lungs and a pulse of one hundred and twenty on the day the will was executed. No offer was made to show that this indicated unsoundness of mind. It appeared that counsel for the contestant had T-iim sign legal documents about a month before the date of [266] the will. The acute stage of his disease did not occur until some months after the will was executed; and he lived until December 11 of that year. General allegations, such as that the contestant “ expect[ed] to be able to establish the fact . . . that this man wasn’t at the time he made this will, in a mental condition to understand what he was doing,” cannot prevail against the actual facts indicating that he had the contestant in mind. He distributed the bulk of his estate among charitable organizations: a disposition not unreasonable or unjust to the contestant, in the circumstances disclosed by this record. Clark v. McNeil, 246 Mass. 250. The decision of the Probate Court ought not to be reversed. Order affirmed.