Johnson v. Loring

Carroll, J. In the Probate Court a motion for a jury issue, whether the will of Mary L. Loring was procured by the fraud or undue influence of C. Marc Johnson and Marion A. Johnson or either of them, was allowed. The judge of probate heard the statements of counsel and also heard certain witnesses. The estate of Miss Loring, according to the statements of counsel, was about $10,000. She gave to her brother $200, to C. Marc Johnson $500, to Marion A. Johnson $1,000, to various friends legacies from $50 to $500; the residue of her estate she gave to Marion A. Johnson. In his report of the material facts the judge of probate states that Isaac Loring, the decedent’s brother, testified that she said to him some time after the will in question was executed, “Isaac, I have done wrong and I am sorry. I have been misled”; that counsel for the contestants stated that on one occasion when Isaac called on his sister he found Johnson there; that Isaac said “when my sister gets better or when my sister is able to move, I am going to take her home,” and that “Johnson turned his back on him and said nothing.” The judge denied the motion, so far as it related to the issue, whether the decedent was “of sound and disposing mind and memory at the time of the execution” of the will. Issues for a jury are not to be framed unless there appears in the evidence or in the statements of counsel sufficient ground for a reasonable expectation of a result favorable to the party requesting the framing of issues. It must appear that there is a genuine controversy, and some evidence of a [312] substantial nature to support the contention of the contestants. Fuller v. Sylvia, 240 Mass. 49. Cummins v. McCawley, 241 Mass. 427. Adams v. Blair, 255 Mass. 152. Johnson v. Talbot, 255 Mass. 155. We discover nothing in the evidence to warrant the framing of issues. There is no evidence sufficient to show that either Mr. or Mrs. Johnson procured the will to be executed by fraud or undue influence; mere opportunity to exercise undue influence is not enough. Cummins v. McCawley, supra. The fact that Johnson “turned his back . . . and said nothing” when the decedent’s brother said he was going to take his sister home when she “is able to move” did not in any way indicate fraud or undue influence on the part of Johnson. Nor does the statement made by Miss Loring to her brother, in effect that she had “done wrong and . . . [was] sorry . . . [and that she had] been misled,” show that she was the victim of fraud or undue influence practised by the Johnsons. The remark may not have concerned the will, and if it did, it does not appear that either Mr. or Mrs. Johnson misled the decedent. The order directing the framing of the issue was erroneous. Order reversed.