Johnson v. Jenks

Pierce, J. Louis H. Perley, when seventy-four years of age, on April 26, 1912, executed the instrument offered for probate; he died of hypostatic pneumonia, arterio-sclerosis and a fractured humerus, on September 1, 1924, at the age of eighty-five years. In his will Perley undertook to divide his estate between the Anti-Saloon League, if incorporated within two years after the probate of the instrument, and Berea College of Kentucky. His clothing and furniture were given to the pastor for the time being of the Warren Avenue Baptist Church of Boston, to be distributed among such poor people as he might select. Reverend Herbert S. Johnson, then pastor of the Warren Avenue church, was appointed executor. The Probate Court for the County of Suffolk framed and sent to the Superior Court for trial the following issues: "1. Was Louis H. Perley at the time of the execution of the said alleged will of sound mind? “2. Was the execution of said alleged will of said Louis H. Perley procured by the fraud or undue influence of Herbert S. Johnson exercised upon the said Louis H. Perley?” The probate of the alleged will was contested by Delphine M. G. Jenks and Edwin F. Gillette, niece and nephew respectively of the said Perley, as also his next of kin and heirs at law. The proponent rested at the close of the evidence offered by the contestants and moved the trial judge to direct the jury to answer the first question in the affirmative and the second question in the negative. The judge granted the motion as to the second question and the contestants duly excepted. The jury answered the first question and issue, "No.” The case is before this court on the exceptions of the proponent to the refusal of the judge to direct the — 30 — requested verdict, and upon exceptions to the admission of evidence; and is also before this court on the exceptions of the contestants to the granting of the proponent’s motion and to a ruling of the judge upon the admission of certain evidence on the issue of undue influence. The proponent on the first issue had the burden of establishing by a fair preponderance of the evidence that the testator, when he executed the instrument, understood the nature of the act and its effects, and understood the extent of the property of which he was disposing; and that he was able to comprehend and appreciate the claims to which he ought to give effect, and his relations to those persons who ought to be in his mind when he undertook to dispose of his property at his death. Whitney v. Twombly, 136 Mass. 145. Becker v. Becker, 238 Mass. 362, 366. Needham Trust Co. v. Cookson, 251 Mass. 160. Banks v. Goodfellow, L. R. 5 Q. B. 549, 565. And the jury passing upon the credibility of the witnesses could give such weight to the evidence offered in support of and against the issue as to them seemed appropriate under the instructions of the court. In this case, as in the large majority of cases, it could not be ruled as matter of law that the burden of proof was sustained, if there was evidence beyond a mere scintilla to support the contention that Louis H. Perley was of unsound mind when the will was executed. Lockhart v. Ferguson, 243 Mass. 226, 228, and cases cited. The evidentiary facts, covering more than eighty years of the testator’s life, offered by the contestants in support of their position that Louis H. Perley was not of sound mind when he executed the will, and received by the court, in many instances against the objection of the proponents, are grouped in the brief of the contestants with references to the testimony contained in the record as follows: The testator was a man of advanced age. He recognized that he was abnormal and attributed his condition to a fall he was told he had suffered in childhood. He had delusions and suffered from lapses of memory; he had fainting spells, tired quickly, and was obliged to sleep a greater part of the time. He wanted science to have his body to ascertain the cause of his abnormal condition. He — 31 — was irascible, he muttered and laughed to himself when alone, and had suicidal tendencies. He bathed excessively. An analysis of the evidence describing the mental and physical characteristics of the testator up to the date of the execution of the will, in 1912, discloses that he had a fall when two years old which shocked his nervous system, and affected his vitality to such a degree that he had need to sleep from two thirds to three fourths of his time; that at times in his life he had fainting spells and in 1863 was sick “nigh unto death” and delirious for four days; that in 1901 he had a loss of memory for a day or two which occasioned his making some ridiculous remarks; that in 1909 he did not recognize his nephew at a meeting in Boston, and miscalled his nephew’s wife, when introduced to her; that in 1910 he did not remember that his niece had married a German count; that in 1911 or 1912 he was heard muttering in his room; that in 1910 he took frequent baths, wanted four towels a day, wanted special food, criticised that which was served, understood only simplest language, did not want postal cards sent him because he did not want people to know about his affairs, and once left the table because he did not like remarks that were made. In 1908 he made a will in which the present contestants are the sole beneficiaries, and evidence was given by witnesses to that will that he was then of sound mind. After the execution of the will in 1912, there is evidence that he tired quickly during the remaining twelve years of his life; that in 1913 he became discouraged and intimated in a letter to his attorney that he was contemplating suicide; that in 1914 he stated that his memory was failing and his mind not clear; that he did not remember anything and was forgetful; that in 1916 he complained of being lifeless and sluggish and spoke of his need of rest; that in 1917 he was troubled with dizzy spells and was treated at the Salem hospital; that he had such spells between 1917 and his death. There was other evidence of similar character describing the condition of the testator after 1912. It is to be observed that there is no substantial testimony that the testator, when in April, 1912, he executed the in — 32 — strument offered for probate, or at any time during the year 1912, had not full capacity to understand the extent of the property of which he was disposing, nor to the effect that he did not appreciate the just claims of the contestants. Nor is there any evidence of peculiarities or of eccentricities during that year such as were manifested from time to time over a period of seventy years before 1912, and at infrequent intervals after 1912 until 1924. Indeed the uncontradicted testimony shows that Perley prepared and delivered a holographic letter for the use of the attorney who drafted the proposed will, wherein the size and character of the estate were described, as were the manner he wished to have it disposed of, the fact that he had made the earlier will of 1908, the names of the previous beneficiaries and an expression of his intention to revoke that will. Having regard to all the testimony and to all proper inferences to be drawn therefrom, there is nothing to warrant a finding that the testator was of unsound mind when he executed the will in 1912. It follows that the request of the proponent should have been given, and that his exceptions must be sustained. On the second issue, of undue influence, the jury were directed rightly to answer “No,” and the contestants’ exceptions are overruled. So ordered.