ABRAHAM VIENS vs. WILFRID VIENS & another.

LUMMUS, J. The executor named in and proponent of an instrument purporting to be the will of Olesime Viens, a widow who died December 6, 1936, at the age of eighty-five years and whose only heirs were her three sons Abraham, Wilfrid and Henry, appeals from a decree of the

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Probate Court, disallowing the instrument as a will because "said instrument was not the free and voluntary act of Olesime Viens but was procured to be made through the undue influence of Abraham Viens." The instrument, after providing for masses and giving $1,000 each to Wilfrid and Henry, gives all the residue of the estate to Abraham and his wife.

No evidence is reported, but upon request under G.L. (Ter. Ed.) c. 215, Section 11, the judge made a finding of material facts. The decree cannot be affirmed unless the facts stated show its correctness. Topor v. Topor, 287 Mass. 473. Birnbaum v. Pamoukis, 301 Mass. 559, 561-562. The contestants have the burden of proving undue influence. Bacon v. Bacon, 181 Mass. 18, 21. Briggs v. Weston, 294 Mass. 452, 460. Mirick v. Phelps, 297 Mass. 250, 252.

These in substance are the facts found. The estate consists principally of three different houses and land. All had been the property of the husband of Olesime Viens. He had died intestate in 1920. The three sons conveyed their interests in the property to their mother, upon her promise that at her death it should he divided among them equally. Each had contributed to the purchase of the property while they lived with their father and mother, Abraham less than the others because he had married early and moved away. In recent years all three sons occupied tenements upon the property, Wilfrid and Henry paying no rent because repeated assurances were given by their mother to them and to other persons as late as 1932, that each should have one of the houses as his own. In reliance upon those assurances Wilfrid made repairs and improvements. Apparently Abraham too paid no rent, for after his father's death he undertook the management of the property, and his mother lived with him. At some time the mother complained to Wilfrid and Henry about the conduct of Abraham, who, she said, drank and did not pay over the rents. She expressed fear that Abraham would waste his inheritance. He and his wife stopped working in 1930. The mother was always on good terms with Wilfrid and Henry.

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The instrument was executed on March 3, 1931. For the last four or five years of the mother's life -- a period that began not long after the making of the will -- Wilfrid and Henry were unable to see her alone, for some member of Abraham's family, in which the mother lived, was always present under instructions from Abraham. For the same period she ceased to visit Henry's tenement, which was in the same house with Abraham's. Henry's wife asked her why, and the mother said that Abraham would not like it and would be angry. On several occasions she told Henry's wife that she was afraid of Abraham. When a neighbor was talking with the mother, and Abraham's wife came near, the mother put her finger to her lips and stopped talking. In 1935 Wilfrid asked his mother whether she had changed her will, and she answered that she had made another will but did not state its contents. He asked her then to change the later will, and she said that she would do so, but Abraham's wife who was present told her not to do anything that she would be sorry for. Three days later she said that she had not changed the will.

The facts found show an aged woman, owning property upon which her three sons had strong moral claims, recognized by her, to equality of succession, living in fear of her son Abraham with whom she made her home for the last sixteen years of her life. He took active steps to prevent his brothers from talking with his mother alone. It could be found that through his wife he took steps to prevent his mother from changing her will. We think that an inference that the instrument was obtained by his undue influence was proper, although the subsidiary facts are not as strong as in many cases. Neill v. Brackett, 234 Mass. 367. Raposa v. Oliveira, 247 Mass. 188. Eddy v. Eddy, 281 Mass. 156. Mirick v. Phelps, 297 Mass. 250. Smith v. Stratton, ante, 17. Old Colony Trust Co. v. Yonge, ante, 49.

Decree affirmed.