DANIELS VS. BENTON et al.

[Supreme Judicial Court of Massachusetts, Suffolk, Feb. 28, 1902; 180 Mass. 559, 62 N. E. 960.]

LEGACIES

INTEREST

TIME OF ACCRUAL.

1. The fact that testator's will gave the residue of his estate for the support of his mother, and that income was to be paid on that trust fund from the testator's death, did not forbid the payment of interest after one year from testator's death on a pecuniary legacy given another, and not paid by the end of the year either for the convenience of the estate or through the neglect of the executors. 2. Interest begins to run on a pecuniary legacy after one year from testator's death without demand.

EXCEPTIONS from Superior Court, Suffolk county.

Action for interest on a legacy by Fannie W. Daniels against Josiah H. Benton, Jr., and another, executors of John C. Paige, deceased. Judgment for plaintiff, and defendants bring exceptions.

Overruled.

Geo. F. Williams and Horace G. Pender, for plaintiff.

Henry W. Beal, for defendants.

LORING, J.- The plaintiff was a legatee under the will of John C. Paige. The testator died on May 8, 1897. The plaintiff's residence was out of the Commonwealth, and was not known to the executors; and they made no effort to ascertain where she was, or to pay her her legacy. On May 18, 1899, the plaintiff demanded her legacy, and it was paid to her. She also demanded interest from May 8, 1898; that is to say, from the expiration of a year after the death of the testator. This was refused, and this action was brought to recover it. At the hearing without a jury the defendant asked for two rulings,— one that on the evidence the plaintiff was not entitled to recover, and the other that interest does not begin to run unless a de

mand has been made for the payment of the legacy. In support of his first contention, the defendant relies on the fact that the residue is given for the support of the testator's mother, and that income is to be paid on that trust fund from the death of the testator. This does not negative the payment of interest on this pecuniary legacy, which was not paid by the end of the year for the convenience of the estate or through the neglect of the executors. Ogden v. Pattee (149 Mass. 82, 21 N. E. 227, 14 Am. St. Rep. 401) disposes of the defendant's second contention. The question of the rate of interest argued by the defendant was not raised at the trial, and is not open to him. There is nothing in it. (Welch v. Adams, 152 Mass. 74, 25 N. E. 34, 9 L. R. A. 244.)

Exceptions overruled.

WEBSTER Vs. YoRTY.

[Supreme Court of Illinois, Feb. 21, 1902; 194 Ill. 408, 62 N. E. 907.]

WILLS PROBATE CONTEST EVIDENCE

EXECUTION

UNDUE INFLUENCE BURDEN OF PROOF - CHARGE.

1. Where the probate of a will is contested, and it is undisputed that testatrix executed the will by signing it in the presence of three witnesses, and that they attested it at her request by signing the attesting clause in her presence, an instruction that "the proponent had the burden at the outset of proving by one of the subscribing witnesses, if alive and within the jurisdiction of the court, that the instrument was legally executed, acknowledged, and witnessed as a will," is erroneous, since the law does not require that a will shall be both acknowledged and signed in the presence of the witnesses; proof of either being sufficient.

2. The instruction is also erroneous in requiring the proof of the execution of the will to be made by one of the subscribing witnesses, if alive and within the jurisdiction of the court, since such proof may be made by any competent testimony.

3. On the contest of the probate of a will, it appeared that the part of the paper containing the signatures of testatrix and witnesses had been cut off, and reattached by pasting on with thin paper. The court charged that the burden rested on proponent of proving by at least one of the subscribing witnesses that the instrument was

the one testatrix signed or acknowledged in their presence. Held error, since an attesting witness is not required to know that he is attesting a will, or what its provisions are, so as to identify it.

4. On the contest of the probate of a will the evidence was undisputed that, after the will was signed by testatrix and the witnesses, she kept it in her box in a bank, and no one had access to the box but herself. After her death the banker inclosed it in a sealed envelope and delivered it to an express company to send to the clerk of the County Court. The package was taken from the safe of the express company, and opened, resealed, and returned. There was no evidence that the principal legatee had anything to do with this, or to indicate what the object was. When the package was received and opened by the clerk, the part of the paper containing the signatures had been cut off, and reattached by pasting. . There was no evidence as to when this was done, or as to who did it. The court charged that proponent assumed the burden of accounting for the mutilation, by showing such circumstances as would prove by a preponderance of the testimony that, notwithstanding the changed condition of the paper, it was still the will of the maker, and, if he failed to so' account for the mutilation, the jury should find it was not her will. Held error, since the mutilation raised no presumption against the will, and, after its execution had been proven and it had been admitted in evidence, the burden of proof was on contestant to show that it had been changed.

5. The will being attacked on the ground of undue influence, this charge was also erroneous in casting the burden of proof on that issue on proponent, by requiring her to prove that the instrument was the will of testatrix.

6. Where a will when received from an express company was found to have been mutilated, a charge that the evidence that the package containing the will was abstracted from the company's safe in the evening, and restored the next morning, after having been opened and resealed, did not prove that the will was mutilated by the person so abstracting or returning it, was erroneous, as invading the province of the jury.

7. Where the person receiving the largest bequest under a will went with testatrix to the lawyer who drew it, and the evidence was undisputed that testatrix knew and thoroughly understood all the provisions, a charge that the circumstances, if proven, that a will has been procured to be written by a person largely benefited by it, will require stricter proof of volition than where such circumstances are not found, and proof by a preponderance of the evidence that the testatrix has not been imposed on, but knew what disposition she was making of her property when the will was made, is erroneous, as in the nature of an argument on the facts, and requiring proponent to prove absence of undue influence.

8. On a contest of the probate of a will, a charge that, if the jury found one who was largely benefited by the will took an active part in having it prepared and executed, they should find against the vaiidity of the will, unless proponent proved by a preponderance of the evidence that its provisions were reasonable and fair, is erroneous. 9. On a contest of the probate of a will, a charge which assumes as a fact that there was fraudulent and undue influence on the part of a principal legatee is erroneous.

APPEAL from Circuit Court, Lee county; JAMES SHAW, Judge.

Proceeding by Annie E. Webster for the probate of an instrument purporting to be the will of Barbara E. Leach, deceased. John Yorty contested the same. From a judgment of the Circuit Court that it was not her will, entered on an appeal from the judgment of the County Court refusing probate, Annie E. Webster, a legatee, appeals.

Reversed.

A. F. Wingert, for appellant.

A. C. Bardwell, for appellee.

CARTWRIGHT, J.— An instrument in writing dated October 28, 1899, purporting to be the last will and testament of Barbara E. Leach, deceased, disposing of real and personal property, was presented to the County Court of Lee county, and at a hearing of the petition for the probate thereof it was denied. Appellant, one of the legatees, prayed an appeal to the Circuit Court, where appellee contested the probate of the instrument, and a jury trial resulted in a verdict that it was not the will of said Barbara E. Leach. The court entered judgment in accordance with the verdict, and against appellant for the costs of the proceeding. At the trial the proponent proved by the testimony of the three subscribing witnesses, William Lesslie, Friend O. Smith, and Fred C. Beach, that the testatrix signed the will in their presence, told them it was her will, and asked them to sign it as witnesses, and that they attested it by signing as such witnesses in her presence, and that they believed her to be of sound mind and memory at the time she executed the same. The will was thereupon admitted in evidence by the court. There was

no contradictory evidence as to the execution and attestation of the will. It was also established without dispute that the will was the same one executed by the testatrix, and that she had testamentary capacity to make a will and dispose of her property as she saw fit. The defense seems to have been upon two grounds: First, that there had been a mutilation of the will; and, second, that its execution was procured by undue influence of Charles E. Hicks, the chief beneficiary under it. It appeared that the lower half of the last typewritten sheet of the will, containing the signature of the testatrix and the attesting clause, with the signatures of the three subscribing witnesses, had been cut off, and reattached at the same place by pasting a narrow strip of paper to the back of the will along the line of the incision. The will had been kept by the testatrix in her box at the bank where she did business, at Ashton, in Lee county, where she lived, and no one had access to the box but she. After her death the banker inclosed it in a sealed envelope and delivered it to the American Express Company at Ashton, to be sent to the clerk of the County Court at Dixon. The express package was taken from the safe by some one while in the possession of the express company at Ashton and opened. The package was returned, the seals having been taken off and others substituted. There was no evidence that Hicks was in any way connected with that act, and nothing to indicate what the object of it was. It is conceded by counsel that the purpose with which it was done is matter of mere speculation, but there was no evidence tending to prove that the cutting off of that part of the will and reattaching it was done at any other time. The testatrix was a widow and childless, and Hicks was her nephew. He had lived with her and her husband from the time he was thirteen years old; for a number of years learning the druggist business, in which Mr. Leach had been engaged. About sixteen years ago he left Ashton, and since that time, with the exception of two years, has lived in Nebraska. Mr. Leach died in 1899, leaving a will, in which Hicks and the widow were named as executors. Hicks, being a resident of Nebraska, could not act as executor, but he came from Nebraska to attend the funeral, and assisted his aunt in inventorying the estate, and attending to her business; and it was at this time,