Will, Undue influence and fraud. Practice, Civil, Conduct of trial, Exceptions. The fact, that the provisions of a will are different from the previously expressed purpose of the testator or from what such provisions would have been if the testator, besides being in the full possession of his faculties, had acted under independent advice, does not require that the will should be set aside. A testator has a right to change his mind and to select his own advisers.
It is proper for a presiding judge to refuse a request for an instruction to the jury which assumes the truth of facts in dispute.
It is proper for a presiding judge to refuse a request for an instruction to the jury which, by asking him to emphasize in his charge certain portions of the evidence, attempts to put into his mouth an argument for the contention of the party making the request.
At a trial of the usual issues as to the validity of a will the contestants asked the judge to instruct the jury as follows: "If it is shown that at the time of the execution of the will the testatrix' mind was enfeebled by age and disease, even though not to the extent producing mental unsoundness, and the testatrix acted without independent and disinterested advice, and in the presence of the beneficiary under her will, and such gift was of the whole or a large portion of the testatrix' estate, and operated wholly or substantially to deprive those having a natural claim upon her bounty of all benefit in her estate, these circumstances authorize the jury to find the will void through undue influence without proof of specific acts and conduct on the part of the party charged with exerting undue influence." The judge in his charge to the jury made it plain to them that they might infer undue influence from the facts mentioned in this request if they found these facts to be proved and chose to draw such an inference. Held, that this was as far as it was the duty of the judge to go.
A person may have sufficient capacity to make a will if let alone and yet not be of sufficient capacity to resist the pressure upon him of strong influence, and the question whether the use of such influence is lawful often may depend upon the condition of mind and body of the person upon whom it is exercised; but this does not make it improper for a presiding judge to refuse to instruct the jury that "the question of undue influence and mental incapacity cannot be separated where the testatrix was of advanced age and suffering from a disease affecting her brain and vital powers."
Under R.L.c. 173, § 80, a presiding judge has no right to tell the jury that the testimony of a witness is open to the gravest doubt.
At a trial of the usual issues as to the validity of a will, which left all the property of the testatrix to a niece who had lived with her during her last illness, the contestants, who were the excluded nephews and nieces of the testatrix, asked the judge to instruct the jury that the fact that the favored niece stood in a relation of trust and confidence to the testatrix, who asked her advice, which the niece gave to her own advantage and to the injury of all other relatives, would warrant the jury in disallowing the will. The judge refused the request. Held, that the refusal was right; that it was a question for the jury to determine whether and how far there was a relation of trust and confidence between the favored niece and the testatrix, that, if the jury found this fact to be as contended by the contestants, it would be a material circumstance for them to consider and they would be warranted in saying that the will should not be sustained without proof to their entire satisfaction that it expressed the real intention of the deceased, which was not the instruction requested.
On exceptions merely to the refusal by a presiding judge of requests for instructions, if the requests were refused properly, it is not open to the excepting party to argue that the instructions given by the judge might be taken in a broader sense than is consistent with the law.
SHELDON, J.
The questions argued in this case arise upon the refusal of the judge to give certain instructions that were specifically asked for by the respondents. There was doubtless a great body of evidence which called for serious consideration by the jury upon the question whether Mrs. West's will was procured through the fraud or undue influence of Mrs. Hayes, the only beneficiary thereof; but if this question was answered wrongly by the verdict, the respondents' only redress is by application to the judge for a new trial for that reason. Aiken v. Holyoke Street Railway, 180 Mass. 8. As was said by Montgomery, J., in Asbury v. Charlotte Electric Railway Power Co. 125 N.C. 568, 573, we cannot criticise the verdict of the jury.
The eleventh request could not have been given in the form asked for. The fact that a will differs from the previously expressed purpose of the testatrix, or from what it would have been if, besides being in full possesssion of her faculties, she had acted under independent advice, does not require it to be set aside. She had the right to change her mind and to select her own advisers. And the jury were sufficiently told that the will could not be sustained unless the petitioner proved that the testatrix was of sound and disposing mind and memory.
The fourteenth, seventeenth, nineteenth, twentieth, twenty-second, twenty-third, twenty-fourth, twenty-fifth and twenty-seventh requests are all objectionable, and the judge was not required to give them. Some of them assumed the truth of facts which were in dispute; most of them were attempts to put arguments for the respondents' contentions into the mouth of the judge, by calling upon him to charge so as to emphasize certain portions of the evidence. All of them were obnoxious to one or both of these objections. Both fraud and undue influence were sufficiently defined and explained in what was said to the jury.
All the contentions of the respondents mentioned in the eighteenth request were sufficiently explained to the jury; and it was made plain to them that they might infer the existence of undue influence from the facts mentioned in this request, if they found these facts to be proved and chose to draw such an inference. This was as far as it was the duty of the judge to go. Woodbury v. Woodbury, 141 Mass. 329. Banfield v. Whipple, 14 Allen, 13, 14.
It would not have helped the jury to state to them the abstract proposition of law contained in the twelfth request. It is true of course, as argued by the respondents, that a person may have sufficient capacity to make a will if let alone and yet not be of sufficient capacity to resist the pressure upon him of strong influence; and the question whether the use of such influence is lawful or not often may depend, and perhaps in this case did depend, upon the condition of mind and body of the person upon whom it is exercised. Dexter v. Codman, 148 Mass. 421, 424. Bacon v. Bacon, 181 Mass. 18, 22. But that is not what the judge was asked to say to the jury. He had a right to refuse this request.
As to the twenty-first request, it is enough to say that a judge has not the right to tell a jury that the testimony of a witness is open to the gravest doubt. R.L.c. 173, § 80. Commonwealth v. Barry, 9 Allen, 276, 278.
Nor ought the twenty-sixth request to have been given in terms. It was a question for the jury to determine whether and how far there was a relation of trust and confidence between Mrs. Hayes and the testatrix. If the jury found this fact to be as contended by the respondents, it would be a material circumstance for them to consider, and they would be warranted in saying that the will should not be sustained without proof to their entire satisfaction that it did express the real intentions of the deceased. Jones v. Simpson, 171 Mass. 474, 477. Davenport v. Johnson, 182 Mass. 269. But this is a very different proposition from that which was asked for by the respondents.
No exception was taken to any of the instructions given; but only the refusal to give the instructions which have been mentioned was excepted to. If the respondents feared that the language used by the judge might be taken in a broader sense than they deemed consistent with the law, they should have called his attention to the matter. McKee, v. Tourtellotte, 167 Mass. 69, 72.
Exceptions overruled.