Fitch v. Fitch

Wait, J.

This case is before us upon exceptions taken at the trial of issues of fact sent by the Probate Court to the Superior Court for determination by a jury."

The excepting party has waived the question of evidence.

The motion to direct a verdict for the proponent on the issue of undue influence presented for the consideration of the presiding judge, the question, whether from such facts as the jurors believed in the testimony of the witnesses, and such as they might infer, legitimately, from facts so established there was enough to justify a conclusion that undue influence had been exerted by either or both the wife and the daughter of the testator.

It is not necessary to discuss the entire evidence. There was evidence of a will seemingly inequitable in its differing provisions for a son and a daughter. The son, out of an estate of over $300,000, would receive, at the most, the *552 income on $5,000 for life; the daughter would receive, at the least, $5,000, while she might get everything except the income on the $5,000 during the lifetime of her brother. There was evidence of weakness of mind of the testator; of business capacity and cupidity on the part of the wife; of prejudice by the wife and daughter against the wife of the son; of opportunity in the wife and daughter to overpower the testator’s weaker will; of lack of self-assertion and the simplest business selfishness on the part of the son; of statements by the father of regard for the son, and of intentions to make other and more favorable testamentary dispositions.

It is true that the testator was of sound mind; that the evidence of undue influence was weak; that undue influence is not made out by proof of effort by husband or wife to persuade the other to action desired by the person seeking to exert the influence; that a reasonable man might lack faith in the business capacity of the son; and that the argument for the contestant addressed to us in the brief suggests very strongly that the argument made to the jury was specious and unsound.

A different verdict might have been found with propriety. Nevertheless, the inferences of fact on which the issue depended were for the jurors, not for the judge, to decide; and there was evidence which would warrant the conclusion reached.

Exceptions overruled.