
332 Mass. 223 (1955)
124 N.E.2d 251
LOUIS W. MORIN
vs.
ALFRED MORIN & others.
Supreme Judicial Court of Massachusetts, Worcester.
January 3, 1955.
February 8, 1955.
Present: QUA, C.J., LUMMUS, WILKINS, SPALDING, & COUNIHAN, JJ.
Philip J. Murphy, (Leo C.M. DesChenes with him,) for the proponent.
Henry G. Bowen, for the contestants.
LUMMUS, J.
After the decision in Morin v. Morin, 328 Mass. 33, the question of the validity of an alleged will of Charles Morin, late of Fitchburg, was submitted to a jury on the issues of soundness of mind of the alleged testator and the alleged undue influence upon him of his son Louis W. Morin, who was named as executor in the alleged will. The contestants are other children of the decedent. The jury *224 found that Charles Morin was of sound mind when the alleged will was executed, and that issue is not now before us. But the jury found that the execution of the alleged will was procured by the fraud or undue influence of Louis W. Morin, exercised upon Charles Morin. The proponent of the will excepted to the refusal of the judge to direct a verdict in his favor upon the issue of undue influence.
The nature of the undue influence that will vitiate an alleged will was elaborately considered in an opinion by Chief Justice Rugg in Neill v. Brackett, 234 Mass. 367. Shortly stated (page 369), "Fraud and undue influence in this connection mean whatever destroys free agency and constrains the person whose act is under review to do that which is contrary to his own untrammelled desire." Mirick v. Phelps, 297 Mass. 250, 252. O'Brien v. Collins, 315 Mass. 429, 437. The burden of proving undue influence is on the contestant. Bacon v. Bacon, 181 Mass. 18. Collins v. Walker, 272 Mass. 46, 48. Hogan v. Whittemore, 278 Mass. 573, 578. Viens v. Viens, 302 Mass. 366, 367. Arcieri v. Burke, 319 Mass. 21.
There was evidence tending to prove the following. At the time when the alleged will was executed the age of the decedent was seventy-eight years, and at the time of his death it was seventy-nine. He suffered from heart disease, hernia, hardening of the arteries, diabetes and cancer of the lip. He had six children besides Louis, and with them he maintained normal relations of love and affection and to some of them he was morally much indebted for care. Yet the alleged will gave substantially all his estate to his son Louis. At times the decedent disliked and distrusted Louis, and thought that Louis already had enough property. The I promise ... in good repair." The plaintiff then paid the rent, which was $16 a month. On cross-examination she testified that George said, "I keep it repaired; I keep it good, and I will keep it safe.... I promise you." At this time there was, according to the plaintiff's testimony, a hole in the piazza "two fingers" wide and eighteen inches long, which she pointed out to George. On a later occasion *225 knowledge of Louis, Louis denied that the decedent had made any "paper." On the whole, we think that the issue of undue influence was properly submitted to the jury.
Exceptions overruled.
