Fulton v. Umbehend

65 N.E. 829, 182 Mass. 487, 1903 Mass. LEXIS 894

• Court: Massachusetts Supreme Judicial Court
• Decided: January 8, 1903
• Status: Published

Opinion

Hammond, J.

The only issue submitted to the jury was whether at the time of the execution of the will the testator was of sound and disposing mind and memory. The bill of exceptions as amended shows that the presiding judge in his charge fully and clearly instructed the jury that the burden of proof was upon the petitioner to show by a fair preponderance of the evidence that the testator was of sound mind and capable of making the'will.

The appellant objects to certain sentences in a subsequent portion of the charge, as being contrary to the prior instruction as to the burden of proof and therefore erroneous. But there is nothing in this contention. In the part of the charge to which the appellant thus objects, the presiding judge was not discussing the burden of proof, but simply the effect of delusions on the testamentary capacity of a person. We do not see anything in that part of the charge which contradicts or in any way qualifies the previous instructions given as to the burden of proof. The instructions were full, clear and correct, and we see no ground for the contention that the jury were likely to be misled by them.

Exceptions overruled.