Dunster v. Goward , 221 Mass. 339 ( 1915 )

Pierce, J.

The evidence in favor of the validity of the will and against the assertion of fraud and undue influence was substantial and required the submission of the issues to the jury. The contestant has not argued otherwise, but asserts her right, under a request for a directed verdict, to bring all the evidence before the Superior Court to this court for review of facts as well as law.

There is no authority in this Commonwealth for such procedure. Crocker v. Crocker, 188 Mass. 16. A submission of issues of fact to be tried by a jury is expressly authorized. R. L. c. 159, §§ 36, 38; c. 162, § 25. In the case at bar the jury found, upon consideration of the submitted issues of fact, that the testator at the time of the execution of the will was of sound, disposing mind and memory, and also that the will was not procured by the undue influence or fraud of Sarah J. Burns and Henry Dunster, or either of them.

These findings are conclusive upon the parties and upon this court until set aside, for good cause shown, by the trial judge in the exercise of his discretion, or by this court because of error of law. Franklin v. Greene, 2 Allen, 519, 522. Ferry v. Shedd, 159 Mass. 200. Crocker v. Crocker, 188 Mass. 16. In view of the undisputed record facts the judge well might' have granted a hew trial; but it also was given to him to see the witnesses and to hear their testimony, and we have no power to revise his judgment. Capper v. Capper, 172 Mass. 262. Ingalls v. Oliver, 198 Mass. 345.

The contestant has not specifically argued upon her brief any exception taken to the charge, to the refusal to charge, or to the allowance of the cross-examination of the contestant as to the amount, kind and location of her property; therefore these exceptions might be treated as waived; Bacon v. Bacon, 181 Mass. 18; but we prefer to pass judgment upon them. , •,

The testator, before executing his will, and in the will itself, gave as a reason for omitting to make a devise or bequest to the contestant the alleged fact that she had an abundance of propr erty for her needs. That he was not acting under a mistake in this regard was material to the issue of his capacity to appreciate the just claim to his bounty of his only kin. Davenport v. Johnson, 182 Mass. 269. The exception to the cross-examination was not well taken. O’Connell v. Dow, 182 Mass. 541, 546.

The law governing the testator’s capacity to make the will and that relating to fraud and undue influence was fully and accurately stated.

The requests for rulings so far as they accurately stated the law were given in substance, and no just complaint lies to. the refusal to give the others.

Exceptions overruled. .