Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1877-10-05
1877.
Judge rlerpoInI's Charge to the jury In the
Meech VIII Ease.

AOff
Judge PlerpOlnI's Charge To the jury In the
Meeeh VIII Ease.
The questions in this case are: First,
Was the will of Mrs. Mech duly executed
Second, Had the testator sufficient mental
capacity to execute valid will? Third,
Was there any undue influence exercised to
induce or cOnstrain her TO make this will
The first two of these points are to be estab-
lished by the proponents. On the question
OF undue influence, the burden OF proof rests
on the contestants OF the will. As to the
legal and proper execution of the will, no
question is raised Whether the testatOr
was Of sound mind il question for the
jury. On the question OF undue influence |
am of the opinion that there Is no evidence
tending to establish such undue influence.
What tends to show urduc influence
There is no pretext that any such influence
came from any source, except from Miss
Hemenway. 1t is said that she was in :,
situation where she had the opportunity to
exercise such influence; and that she had n
motive, in her interest in the prov sions of
tho will. But YOU have no right from
these facts to draw the inference that undue
influence Cds exercised. That must be es-
tablished by proof When you have estab-
lished that. you have right to consider
who would profit by the will. Ii does nor
prove that man was killed, becauset
another man had an opportunity to kill
him, or an interest in his death. For in
stance, the facts that sou was living =ith
his iather. and was to be his heir, do not es-
tahlish it that his father was killed; but
when the killing is established we have a
right to inquire who had a motive for kill
ing him. So you cannot infer from the fact
that Miss Hcmenway had oppo rtunityto
influence Mrs. Mech, and exerted it,
that there was undue influence in
the making of this will. Miss Hem
enway was living with this old lady :;
but there is not particle OF evidence to
show that the subject of will was ever
mentioned between them, or that Miss Hem
enway ever thought of the subject. There is
no evidence in that direction. That
she exerted an influence on the old lady is
doubtless true. She had secured her afiec
tion, and her opportunity and ability to in
huence her were good. But you cannot inter
undue influence from the exercise Of atfec-
ton. You must establish the undue in
fluence by proof in order to defeat the
will.
1t is SAID that Miss Hemenway was always
present in Mrs Meech's room You can t
infer undue influence from that. 1t was
her business to be there. Why should she
90. " hen parties called? 50 far as appears
no witress has iDtmated that he or she
wanted u private interview with Mrs
Mech. except Mrs Hagar. Ne one ever
said they had private business with Mrs.
Mech. They did not claim that it was i'm
pOrtant for them to see her alone. Mrs.
Walker said it would have been pleasant
for her to sec her grandmother alone, some
times; but it does not appear that she ex-
pressed any wish to that effect. Ii Miss
Hemenway, having business elsewhere, had
always obtruded herself into Mrs. Meech's
room, when any one called, it would have
been different thing. But she was
there of right. and there was no reason why
she should not stay there. There is some
evidence that she was not always civil in
her manntr, and that she interposed herself
in conversations; but there IL no evidence
that she ever interiered with any c1nversa-
tiOn on the subject Of the old laty'S affairs.
Her interpretations may have had proper
motive, a. to relieve Mrs Mech oi the exrI-
tIOn OF talking. But her interference,
though marked and unnecessary, would not
tend to show undue influence She was
there. and 1t is argued that her influence
was exerted over Mrs. Mech, before the
death of her son, ID. W. C. Clarke when no
will was necessary or thought of so far as
appears 1t is SAID that Miss II went there
because 1t was a comfortable place to re-
main in and 10 order to secure u pleasant
residence. There is No proof Of this but
had she not ri-ht to do it? II she went
had she no, the right to make herself usC-
ful, even with the purpose and hope that
she might remain2 There was nothing
wrong in that. 1t is no matter of reproach.
1t is said that after this after Clarke'~ death.
she continued this course of conduct in the
hope and expectation that she would be re-
membered in Mrs. Meech's will Had she
not that right? II 4 person canno; do that
without suspicion of misconduct you will
often place old people in an unfortunate pO
sitiOn. IL would be hard il their friends
can't take care OF them without being sub
ected to a charge of undue influence. No
inference IL to be drawn from such conduct,
to the prejudice OF anybody. But when
persons have thus secured the affection OF an
old person, they have no right to cOerce
such old person-tO make their own wills
predOmInate over his OF hers, and to con-
STRAIN her to make will, different from
what it would otherwise have been When
that is done you get undue influence. Then
the will becomes not the will OF the te>tatOr
but the will of the interested party ; and
such will is invalid You must first es-
tAbli>h the fact OF undue influence. But
no such undue influence can be inferred
from the facts appearing in this
case. You may say and reiterate
that the old lady was controlled
by Miss llemenway but unless the asser
tion is based on testimony, it amounts to
nothing. As this case stands there is no
legal proof that Miss llemenway exercised
undue influence, and there is n,thing on
that point To 20 to the jury. TIE only ques-
ton for the jury is whether the old lady had
sufficient mental capacity To make = will.
Gentlemen OF the jury The only questions
for you are whether this will WAS executed
according to law; and, if 81, whether the
teStator had It fhcient mental capacity II
execute such will. There l. NJ evidence
Of undue influence, and that question il
from yuur cJn>idsrdtIun.
In reference to the execution OF the will,
there is no question that ali the forms OF
aw were complied with. Whether this old
lady had mental capacity tu make will is
purely question ot fact. What degree of
mental capacity il requisite in o,der to
make valid will? On this point the
Ease of Converse v. Converse Ia the VET !
mont Repcrt| has been the leading case.
In that case. the testator, AT old gentleman,
had sOitenlng OF the brain and the ques-
ton was whether or no the disease had pro
yressed sufficiently to deprive him Of mental |
power sufficient 10 make = will. Judge |
PlerpOint here read from jude Benefits |
opinion IN the case cited. tO the ff-ct that |
The validity of the will depended on whether !
he testatur had sufficient mental capacity |
It the tune the will was made. to be cor
'idered of sound dlsp0~inX mind that such |
might exist though the mind was !
weakened by disease or old age; that tO /
make will it was Rot requisite that the /
e-tatOr should have such capacity that he ,
'ould engage in general business but that |
he must have enough Iu conduct the busl
ne. 5 of making the wlll and mus; be capable
If understanding the relations ut the case
md Of deciding to whom his property should
20. The ease was appealed to the general
erm and IN giving the decision of the iull
court, Judge Redtield sand the rule laid
iOwn hv Judge Bennett was sensible and
that the te>;at.r must have
memory and mind onou. to retain the elc-
nonts of the business 10 be transacted, and /
o form II rational judgment. and that where
here IL no reason To inter undue influence,
-
he capacity Of the testator.
Judge PicrpOint adopted the language of
thcr Judges. a. applicable to this case.
Aiter IL man has lost the capacity to 20 out
nto the world and make contracts, and
rades. he may still understand his own
fairs aud know what he wants to do with
is property. II 81 he can make Il valid
Will Had this old lady such sufficient men
Il Ibs,x f..l
that she said and did, who She said she
'anted to leave her property to. and the
easOns why she did not want it to 20 to
thers. II what these witnesses have stated
II would be II strong Indication
hat she was capable. There is no state
ient that contains any IncOngruItN; all Is
onsisicnt and harmonious and indicates
hat she knew what she was about. These
illnesses were called in To witness the exc
ution OF the will. ard thus had Il good op-
ortunity to know the mind of the teStator.