Ware v. Morton

Lummus, J. This is an appeal by contestants of an instrument presented for probate as the last will of Margaret Bradford Morton, from the denial of their motion to frame issues for trial by jury as to soundness of mind and as to [109] undue influence exercised by Edith Stobo Cave and Julia Jacobs FitzGerald. The decedent died February 8, 1933, at a hotel in Boston, at the age of seventy-nine, leaving neither husband nor children. The contestants, with the exception of one first cousin once removed living in Plymouth, are the descendants of Howard Morton, a first cousin, who moved to Kansas in 1866, but whose children living in the west kept up their relations with the decedent and sometimes visited her. The matter was presented to the Probate Court, as is customary, upon statements by counsel. Issues are not framed merely because the contestants offer evidence enough to warrant a verdict in their favor and to prevent the direction of a verdict against them. Neither are issues denied merely because the court thinks that the weight of the evidence is against the contestants. The rule governing the framing of issues has recently been restated in Cranston v. Hallock, 281 Mass. 182, Smith v. Patterson, 286 Mass. 356, and Terry v. King, 286 Mass. 598, and needs no repetition. The will offered for probate, dated June 13,1932, gave the family homestead in Plymouth to Morton Kyle and Ralph Morton Diaz, each a grandson of a cousin of the. decedent, and gave each of them $10,000 in addition. It gave all tangible personal property to Dr. Edith Stobo Cave, apparently in the expectation that she would distribute it in accordance with the wishes of the decedent. The residue is given in equal shares to Dr. Cave and Mrs. FitzGerald, already mentioned. No attempt will be made to marshal all the facts contained in the statements of counsel. Dr. Cave is an osteopathic practitioner who had known the decedent intimately since 1912 or 1915, and since 1928 had lived with her and had furnished her care and companionship. Mrs. FitzGerald had been a protégée of the decedent for many years. The decedent took her abroad in 1911. She became estranged from the decedent in 1922, but as early as 1929 the old intimacy was resumed. None of the contestants was as close to the decedent as the two residuary legatees named. A series of wills, beginning in 1917, drawn by eminent counsel, shows considerable stability of purpose on the part [110] of the decedent. Dr. Cave is a leading beneficiary in all of them. Some of them appear more favorable to her than the will in question. In a letter to counsel relating to the drafting of a will in 1926, the decedent stated that her primary purpose was to care for Dr. Cave. Morton Kyle and Ralph Morton Diaz were devisees of the homestead in most of the wills. Mrs. FitzGerald was given a share of the income of the residuary estate in the first will, and reappeared as a legatee in the later wills, after the reconciliation. Some of the contestants' were remembered in the earlier wills. But by 1932 the estate, which had been much larger, had fallen off to $150,000 in value, with an income of about $13,000 a year, and the contestants were omitted from the will of that year. The evidence of undue influence hardly amounts to more than evidence of opportunity to exercise influence. Johnson v. Loring, 267 Mass. 310. As to mental capacity, there can be no doubt that the decedent, when in good health, was a woman of intelligence, cultivation and strength of mind. The first definite indication of disease is this statement of counsel for the contestants: “For a number of years before 1929 she was suffering from paralysis agitons, popularly called Parkinson’s disease, and a sclerotic condition. . . . Before her death and before this instrument was executed she was suffering from angina pectoris, cerebral arteriosclerosis and hypertension.” A drug called hyoscine hydrobromide was administered regularly to control the tremor, and this caused temporary mental confusion. Not until September or October, 1932, did the decedent show mental deterioration constantly and independently of drugs. In the opinion of a majority of the court, there is no substantial evidence that at the time of the execution of the will on June 13, 1932, the decedent lacked mental capacity as defined in Daly v. Hussey, 275 Mass. 28, and Wellman v. Carter, 286 Mass. 237. Order denying motion for issues affirmed.