See End of Index for Tables of Atlantic Cases in State Reports
f

THE

ATLANTIC REPORTER

VOLUME 107

GAGER et al. v. MATHEWSON. (Supreme Court of Errors of Connecticut. June 11, 1919.)

executed January 8, 1917, and a codicil executed April 12, 1917. His nearest relatives were two first cousins older than himself. For two years before his death he had lived in the house of John S. Sullivan and Lucy

1. WILLS 55(6)—TESTAMENTARY CAPACITY Sullivan, his wife. Lucy Sullivan had lived -MENTAL COMPETENCY.

Evidence held sufficient to warrant a finding that testator, 66 years old, addicted to narcotics, was not competent to execute will.

with the testator's mother for eight or nine years, and the testator had always been on very friendly terms with her. During the last two years of his life she took care of him. His estate inventoried over $216,000, and excluding three smaller gifts, which are not in dispute, was distributed by the will as follows: To Mary L. Spencer, of Roches

The mere fact that there was a relation of peculiar confidence, intimacy, and affection, purely personal, between testator and benefici-ter, N. Y., a second cousin of the deceased, ary, a stranger treated as a sister, who cared for testator in her home and made deposits and purchases for him, does not place burden of disproving undue influence upon beneficiary. 3. WILLS 163(2) — UNDUE INFLUENCE BURDEN OF PROOF-CONFIDENTIAL RELA

TIONSHIP.

Will contest by Charles A. Gager and others against Earl Mathewson, executor. appeal from probate. There was a verdict for contestants in the superior court. Verdict set aside on motion, and contestants appeal, and executor files bill of exceptions. Error, and new trial granted on executor's bill of exceptions.

$50,000; to Mrs. Lucy Sullivan, $50,000; and the remainder of the estate to G. W. Comstock and J. J. Donahue as trustees, the income to be applied to the benefit of the Backus Hospital, of Norwich. The case was tried to the jury on the issues of lack of testamentary capacity and of undue influence on the part of the Sullivans and of Messrs. Comstock and Donahue. The jury returned a general verdict, finding that the paper in question was not the will of the testator. On motion the verdict for the contestants was set aside. From the decision of the Court setting aside the verdict the contestants appealed, and the appellee has filed a bill of exceptions for alleged errors in the charge of the court.

William H. Shields and Arthur M. Brown, both of Norwich, for appellants.

Christopher L. Avery, of New London, and Lee R. Robbins, of Norwich, for appellee.

BEACH, J. (after stating the facts as above). [1] There was testimony from which the jury might reasonably have found that the testator did not possess testamentary capacity when the will was executed. That testimony may be summed up briefly as fol

lows: The testator was in the habit of tak

ing narcotics to excess. The disease of which he died was a progressive disease, which in its normal development would affect his mind. On many separate occasions Nathan Johnson, of the town of Bozrah, he conducted himself irrationally, sometimes died, aged 66, April 17, 1917, leaving a will in such a way as to suggest that he was un

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
107 A.-1

But it is for

"If you believe from the evidence adduced betial relationship, then it would be her duty to fore you that she did occupy any such confidenrebut by a fair preponderance of testimony that she did not improperly or unduly use that relationship for her own benefit."

The facts outlined in this portion of the charge are wholly inadequate to support any claim that such a relationship existed between Lucy Sullivan and the testator as would put her in that limited class of beneficiaries who are required to disprove undue influence.

der the influence of narcotics, and some- [rest upon her to disprove such influence by a times in ways not easily explainable on fair preponderance of evidence. that theory. He appeared at times to be you to determine, gentlemen. ignorant of the fact that he possessed a large estate. In February, 1917, he resigned as administrator of his brother's estate, of which he was the sole heir at law, and requested that another administrator be appointed in his place, although nothing remained for him to do except to transfer to himself a savings bank deposit of $10,000 and to render a final account. He attempted to commit suicide. Mary L. Spencer, to whom he left $50,000, died some weeks before the will was made, and nearly five months before the codicil. Six witnesses testified that from their knowledge and observation they regarded him as of unsound mind. Two physicians of standing gave their opinion to the same effect. And one of the witnesses to a will executed on Janu-ognition. Its justification is to be found in the ary 6, 1917, two days before the execution of the will in question, told Mr. Comstock, within an hour after its execution, that he did not think, from the testator's appearance, that he was capable of making a will. If the jury believed all this testimony, and believed that it outweighed the testimony of the proponent's witnesses and experts, they

might reasonably have reached the verdict which they rendered.

[2] But this is not the only question before us. The statute (section 5841, G. S.) regulating appeals from the decision of a trial court setting aside a verdict provides that the appellee may file his bill of exceptions, that this court shall consider the questions arising thereon, and that, if material error appears, this court "shall not order judgment to be entered on the verdict, but in lieu thereof shall order a new trial of the cause." We find but one material error pointed out in the bill of exceptions, and that relates to the following portion of the charge:

"The appellants further claim, and some evi

dence has been offered to establish, that a confidential relationship existed between Lucy Sullivan and the decedent, arising from the fact that she was for a long time a member of his mother's household and treated by him as a member of the family and as a sister, from his frequent visits to her house and frequent tarries there, and finally going there to make his home, in March, 1915, and remaining there until his death in April, 1917, and from his intrusting her on numerous occasions with his checks, aggregating hundreds of dollars, to deposit in one of the banks for him, and also that she made various purchases, including clothing, for him. And the appellants claim, therefore, that she did occupy a position of peculiar confidence and intimacy with Dr. Johnson, such as would give her a controlling influence over him and his affairs, and would put her in the same category or class as an attorney or guardian deriving a benefit from his will, which would raise some presumption that she exercised her influence unduly, and that the burden would

In Lockwood v. Lockwood, 80 Conn. 513, 522, 69 Atl. 8, 11, we said:

"This exception should not be extended beyond the limitations placed upon it in its rec

rule of policy which seeks to prevent the unseemly sight of a stranger occupying such a delicate fiduciary relation, advising a testator to exclude his own family from participation in his estate for the benefit of the adviser.”

And in Kirby's Appeal, 91 Conn. 40, 43, 98 Atl. 349, 350, it is said:

"The limitations referred to [in Lockwood v. Lockwood] are such relations existing between the testatrix and the legatee as denote special confidence and controlling influence, such as are shown where the legatee is the lawyer who draws the will and advises as to its provisions, or a guardian who has charge of the person and estate of the testatrix, and in like cases of confidence and trust.”

Religious advisers, guardians, attorneys, and physicians are, by virtue of their profession or occupation, advisers in their respective fields, and when selected for that purpose by the testator they are assumed to have special opportunities for influencing the disposition of his property by will. They also occupy a fiduciary relation to the testator, which requires them to use their influence in his service and not in their own. The class is distinct in its type, and if others than those enumerated are brought into it, it will be because they occupy, in the language of Lockwood v. Lockwood, “a nearly analogous position of trust."

[3] We think the charge of the court disregarded the limited application of this exception to the general rule of procedure, and left the jury to infer that the mere fact of a relation of peculiar confidence and intimacy, although purely personal, would put upon Lucy Sullivan the burden of disproving undue influence, if the jury thought she possessed a controlling influence, over the testator. That is not the law. Other things being equal, it is of course true in the case of any person that his opportunities to influence a testator's disposition of his property are proportionate to the extent to which