Ogden v. Greenleaf , 143 Mass. 349 ( 1887 )

Deyens, J.

After withdrawing any opposition to the will and first codicil', the appellant moved to have the issue as to the alleged influence of the petitioner amended by adding the words “ or any part thereof ” to the inquiry whether the testatrix was “ induced by the fraud or undue influence of William M. Ogden to execute said second codicil.” This motion was refused. No exception to this refusal can be sustained. If such refusal was erroneous, any remedy that exists is by appeal only. Davis v. Davis, 123 Mass. 590, 594. Dorr v. Tremont Bank, 128 Mass. 349, 356. This proposed amendment to the issue is not important, and the appellant concedes it to be immaterial unless he was entitled to the instruction to the jury requested, which was, that, under the issue as framed, “so much of said codicil as contained a bequest to said William M. Ogden might be found to have been induced by his fraud and undue influence, and be stricken out, and the remainder of the codicil established, if upon the evidence they should so find.” This request was refused.

Upon the issue as to the procurement of the second codicil by the fraud or undue influence of Ogden, the judge did not instruct the jury that they must find that it was not so procured unless they were satisfied that all the bequests were obtained by his fraud or undue influence. The jury are to be satisfied, he states in his charge, that “ Dr. Ogden exercised this fraud and this undue influence upon Mrs. Appleton to bring about this bequest to him, to bring about the execution of this codicil as it was drawn.” He explains to the jury fully, and in a manner not objected to, the meaning of fraud and of undue influence, and concludes by saying that, if the jury find that the disputed codicil was executed according to the formalities of law, they are to determine “ whether she was influenced, whether she was induced to make it, by the fraud and undue influence of Dr. Ogden.”

The refusal of the judge to give the instruction requested by the appellant cannot have prejudiced him. If the appellant’s view of the law is correct, had the conduct of Ogden been fraudulent, or had he been guilty of undue influence, the codicil would have been partially set aside only. The ruling of the judge upon the issue presented, fairly interpreted, required a verdict in the appellant’s favor if there had been any fraud or undue influence on the part of Ogden, although it affected Ogden’s legacy only. Had the verdict been otherwise than it was, it may be that the executor, or the other legatees under the codicil, as their interests are individual and distinct, would have had ground for complaint if they had brought the matter to the attention of the judge. That, under certain circumstances, there may be a partial probate of a will, as where certain property of which it disposes is properly subject to- it, while other property of which it assumes to dispose is not, cannot be controverted. Deane v. Littlefield, 1 Pick. 239. Holman v. Perry, 4 Met. 492. 1 Redf. on Wills, (4th ed.) 519, But we have no occasion here to discuss the question whether, or under what circumstances, a part of a will or codicil can be rejected and the remainder established, as in the case at bar the jury must have found that there was no fraud or undue influence in regard' to the second codicil.

Exceptions overruled.