Hathaway v. Warren

178 N.E. 288, 277 Mass. 161, 1931 Mass. LEXIS 1103

• Court: Massachusetts Supreme Judicial Court
• Decided: November 9, 1931
• Status: Published

Opinion

Rugg, C.J.

This is an appeal from an order denying a motion to frame issues to be tried by a jury respecting the will of Clare S. McCormick. The case was heard upon statements of expected proof made by respective counsel.

At the hearing in the Probate Court the issue as to soundness of mind of the deceased was waived. In the report of the probate judge it is stated that “no offer of proof was made having any tendency to show the exertion of fraud or undue influence on the part of any of the persons named in the motion.” A careful reading of the entire record demonstrates the soundness of that finding. Neill v. Brackett, 234 Mass. 367. McCormack v. Quilty, 266 Mass. 402, and cases cited.

The will as offered for probate consisted of four typewritten pages fastened together by a simple metal clasp easily removable. It was signed only on the final page and not page by page. The contestants stated that they had expert evidence tending to show that the first and fourth pages were written at a1 different time from the two intermediate pages as shown by the ink and typewriting, and that the signature of the decedent was written at a time different from the date of the will; that the will was kept in a safe deposit box of the decedent to which during the last months of her life some other person had access. There was an offer of testimony in behalf of the proponent that the will was drafted by a member of the bar with whom the deceased had been associated; that the decedent gave an earlier will to the attorney asking her to make a new one following the earlier one except for specified changes; that the new will so drafted was returned to the decedent in September, 1925, the date and name of the executrix being left blank; that later the name of the executrix was inserted in the handwriting of the decedent who, on December 30, 1925, took it to the bank where she was a depositor and signed it in the presence of three officers of the bank who signed as witnesses, all of whom she knew and all of whom knew her; that the instrument offered as the last will and testament would be identified by the attorney as the instrument drafted by her and handed to the deceased. That instrument was inspected by the judge of probate. His finding that there was no genuine and doubtful question requiring the interposition of a jury in these circumstances cannot be rightly reversed. Fuller v. Sylvia, 240 Mass. 49. Swift v. Charest, 268 Mass. 47. Paglia v. Messina, 270 Mass. 1.

It is not fatal to the validity of a will that it is written on several separate sheets of paper provided they compose an instrument connected in its composition. Ela v. Edwards, 16 Gray, 91, 99. Goods of Ainsworth, L. R. 2 P. & D. 151. It is desirable, in order to avoid controversy, that each sheet be identified by the signature of the person executing the will and that several sheets be securely fastened together; but this is not essential. The offer of proof of the contestants did not go far enough to require the framing of issues. The case at bar is quite distinguishable from Maginn’s Estate, 278 Penn. St. 89.

Order denying issues affirmed.