Cereghino v. Giannone , 247 Mass. 319 ( 1924 )

Crosby, J.

This case is before us on exceptions taken at a trial in the Superior Court of an issue framed by the Probate Court respecting the allowance of an instrument offered for probate as the last will of Agostino B. Dondero. The issue was whether the alleged will was “ procured to be made by the fraud or undue influence of Angelo Pensa, Angela Pensa sometimes called Angelina Pensa and Emilio Cereghino or any of them exercised upon the said Agostino B. Dondero.” The jury found for the proponent. The appellant’s exceptions are to the refusal of the presiding judge to give certain rulings requested, to certain parts of his charge, and to the charge in its entirety. They will be considered in that order.

I. The first request was properly refused: it assumed as a fact that the testator’s mind was impaired by age or disease which was not shown to exist; on the other hand there was much evidence to the contrary. Beckles v. Boston Elevated Railway, 214 Mass. 311, 313.

2. The burden of proof was on the contestant to prove affirmatively undue influence; accordingly, the second request was rightly refused.

3. The third request was properly refused as it was necessary to prove fraud and undue influence not merely by evidence but by a fair preponderance of the evidence. Boston Safe Deposit & Trust Co. v. Bacon, 229 Mass. 585, 591.

4. As to the fourth request, the trial judge fully and accurately instructed the jury respecting circumstantial evidence, its weight and effect.

5. The fifth request could not properly have been given as it assumes facts which were not shown to exist. There was no evidence to show secrecy in the execution of the will or suppression by the beneficiaries of its existence. Millen v. Gulesian, 229 Mass. 27. Duart v. Simmons, 231 Mass. 313, 321.

6. The refusal to give the sixth request was not error. There was no evidence that the testator’s mind was impaired or weakened by age or disease at the time the will was executed, nor that he made an unnatural disposition of his property. Besides, if this request had been given, the jury could have found that undue influence had been established, if there was any evidence however slight which tended to prove such influence.

7. The judge, in referring to undue influence instructed the jury: “ It must be proved by circumstances brought together from which no reasonable inference can be drawn other than that the person whose will is in question has been unduly influenced by another so that his will does not express his judgment but his will has been overcome against his judgment.” The instruction, in effect, was that in order to prevail the burden rested upon the contestant to prove beyond a reasonable doubt that the testator was unduly influenced in the making of his will. This was error. Manifestly the degree of proof required to establish the contestant’s contention was the same as exists in civil cases generally, namely, proof by a fair preponderance of the evidence. Grella v. Lewis Wharf Co. 211 Mass. 54. It seems plain however that the error was afterwards corrected by the judge, when he said to the jury: “ You have got to prove enough by way of fact so that a reasonable inference; that the will of the person has been overcome is properly drawn from the testimony.” Later, as his final instruction respecting the burden of proof, he said: "I want to say before I close my instructions to you, I want to say and make more emphatic of what you must be satisfied, — that by a fair preponderance of all the evidence, because in this case and on these questions the contestant of this will has the burden of satisfying you, you must be satisfied by a comparison of this will in all its provisions, and under all the influences which surrounded Mr. Dondero at the time of its making, that such a will could not be the result of his free and uncontrolled action . . . We are of opinion that taking this charge in its entirety the jury could not have been misled as to the degree of proof resting on the contestant to enable her to prevail. Dewey v. Boston Elevated Railway, 217 Mass. 599, 604. Boston Safe Deposit & Trust Co. v. Bacon, supra. Cronin v. Boston Elevated Railway, 233 Mass. 243, 246.

8. The eighth, ninth and tenth exceptions to the charge need not be considered in detail. They cannot be sustained. The statements of the law which were the subject of these exceptions were correct and were appropriate to the issue to be determined.

9. In the course of the charge the jury were told that, “ It would of course be an outrage to his [the testator’s] memory if a will which he intended to have carried out for the disposition of his property should be lightly set aside. . . . On the other hand I want to point out to you again it would be equally a fraud upon him if he made this will under the influence, undue influence, of any one of these three persons or all of them . . . .” Taking the charge as a whole it cannot be regarded as an attempt to impress the jury that the trial judge desired the will should not be set aside, as the contestant argues. The instructions above quoted would seem to be equally emphatic and fair to both parties, and are not subject to exception.

10. The exception to the charge in its entirety must be overruled. It is well settled that an exception to an entire charge does not lie. Curry v. Porter, 125 Mass. 94. Gibney v. Everson, 192 Mass. 228.

Exceptions overruled.