JOSEPH W. MACALLISTER & another vs. ROBERT C. HOSLEY (and a companion case).

HENRY F. SMITH [Note 1] vs. DELLA A. SMITH & others.

352 Mass. 766

March 30, 1967

This appeal from a final decree of the Probate Court of Essex County disallowing the petition for probate of the will of Joseph F. Smith challenges the judge's findings that the testator was not of sound mind on May 16, 1962, when the proposed will was executed, and that the proposed will was procured by undue influence. Either ground would be sufficient to disallow the will. We dispose of the appeal on the first ground. The evidence, consisting almost exclusively of oral testimony, is reported. The judge's report of material facts consisting of twelve

Page 767

printed pages shows that the testator, who had been in good health, suffered a stroke in March, 1960, at the age of seventy-nine, and thereafter deteriorated rapidly, both physically and mentally, until his death on December 22, 1963. During this period he was almost constantly under the care of doctors. He had numerous and complicated serious physical ailments, had lost control of his bodily functions and was unable to care for himself. The testator entered a hospital in April, 1962, for thirteen days. He was then senile and incoherent. On his return home he showed great confusion and did not seem to recognize his children. The judge's finding that the testator was not of sound mind at the time the proposed will was executed cannot be said to be plainly wrong. Needham Trust Co. v. Cookson, 251 Mass. 160 . Hiller v. Hiller, 305 Mass. 163 .

Decree affirmed.

FOOTNOTES

[Note 1] Joseph Warren Smith joins in the appeal.