Cranston v. Hallock , 281 Mass. 182 ( 1932 )

Lummus, J.

This is an appeal from an order of the Probate Court denying the motion of the contestants in a will case to frame issues for trial by jury as to soundness of mind and undue influence. G. L. (Ter. Ed.) c. 215, §§ 16, 22. What constitutes unsoundness of mind and undue influence will be found discussed in Marshall v. Cram, 269 Mass. 124, and Daly v. Hussey, 275 Mass. 28, and cases cited. No evidence was taken, but counsel for the parties made statements, which are reported, as to the evidence which they intended to present at a trial. Cook v. Mosher, 243 Mass. 149. Beal v. Davis, 251 Mass. 175. Statements in opposition to the motion, as well as in its support, may be considered. McIntosh v. McIntosh, 263 Mass. 315. Taylor v. Callahan, 265 Mass. 582. Swift v. Charest, 268 Mass. 47. Bacigalupo v. Cuneo, 277 Mass. 474. The question before us is whether, upon the statements of counsel, there appears to be “a real and true question of fact to be tried supported by evidence of a substantial nature” (Fuller v. Sylvia, 240 Mass. 49, 53, Sheppard v. Olney, 271 Mass. 424), giving ground for “a reasonable expectation of a result favorable to the party requesting the framing of issues.” Johnson v. Loring, 267 Mass. 310, 311. On this question, in which there is an element of discretion, “Weight is to be attributed to the decision of the probate judge,” even though this court has before it everything that was before him. Bemis v. Andrews, 280 Mass. 409.

John S. Cranston, the decedent, was an insurance broker, about sixty-six years old when he died on December 17, 1931. While in college, in 1889, he married his first wife, by whom he had two children, the contestants of the will. In 1900 he had erysipelas, and as a result was insane for about four months. After that, he resumed his business and apparently was normal. His first wife died in 1913. From 1911 until April 13, 1918, his first wife’s mother lived with him and his children, and took charge of the house. On April 13, 1918, against the opposition of his children and his first wife’s mother, he married Agnes T. Bache, the proponent of the will, a divorced woman with three children. Leaving his children and his first wife’s mother in their old home, where he supported them generously, he moved with his second wife and her children to Wakefield. His children and his first wife’s mother were unrelenting in their hostility to the second wife, and would have nothing to do with her. In 1919 his second wife induced him to sell the estate in Wakefield and to buy a house in Newton which was conveyed to them as joint tenants. She also induced him to open an account in a cooperative bank for her, to make a part of his life insurance payable to her, to attempt to make over to her certain commissions due from insurance compañíes, and to convey to her a piece of real estate of small value in New York.

On September 29, 1921, his daughter Harriet married Arthur Hallock. The decedent’s second wife was not invited to the wedding, and objected strongly to the decedent’s attending or giving any present, with the result that he did neither. Soon afterwards she caused the credit previously enjoyed by the first wife’s mother and the decedent’s children at the expense of the decedent to be cut off, except for a payment to the first wife’s mother of $10 a month which continued until the death of the decedent. He continued however to furnish financial aid to his children to some extent.

On May 25, 1930, the decedent suffered a shock and became partially paralyzed. He had made, in April, 1918, a will dividing his estate equally among his two children and his second wife, one third to each. On June 6, 1930, with the assistance of Robert Jackson Cram, Esquire, an attorney at law, he executed a new will, giving the bulk of his estate to his second wife, but making some provision for both his children and the children of his second wife. His second wife was named as executrix. No medical opinion that the decedent was insane at or about the time of the execution of the will was offered, but the proponent offered to show the contrary by medical evidence and attesting witnesses. The decedent was not able thereafter to do any business. He had a high blood pressure and hardening of the arteries, and his brain did not have a sufficient blood supply. A codicil executed October 9, 1931, contained nothing to the advantage of the proponent, or to the detriment of the contestants. In November and December, 1931, the decedent often requested his second wife to telephone his children to find out how they were getting along, and as she refused to do so he found out through his attendant or nurse in the absence of his second wife.

The statement for the contestants also alleges that at some time not stated the decedent had a fear of coming to want, and stored bread crusts in anticipation of need; that he would talk about nothing but insurance, and would try to sell insurance at unusual hours and on unseemly occasions; and that he was forgetful. We do not attempt to relate all the conclusions and charges contained in the statement, or indeed all the proposed evidence, but the foregoing summarizes the case to be presented.

The value of the estate did not appear. While the statement for the contestants declares that the decedent and his first wife together accumulated more than $65,000, there is nothing to show that any such sum is now in the estate. The counsel for the proponent asserts that the estate is small. The children are of mature years and so far as appears are not in need. The second wife, as the contestants themselves say, came to her husband without property. She lived with him thirteen years, and cared for him in his last illness. The will is not unnatural under the circumstances, and does not suggest either insanity or undue influence. In the opinion of a majority of the court, it cannot be said that the probate judge was wrong in denying the motion for jury issues.

Order denying motion for issues affirmed.