
333 Mass. 512 (1956)
131 N.E.2d 775
CORNELIUS R. SULLIVAN
vs.
NORA F. SULLIVAN & others.
Supreme Judicial Court of Massachusetts, Suffolk.
January 3, 1956.
February 2, 1956.
Present: QUA, C.J., RONAN, SPALDING, WILLIAMS, & COUNIHAN, JJ.
*513 Frederick T. Doyle, (William J. Doyle with him,) for the contestants.
Donald Stahl, for the proponent.
COUNIHAN, J.
This is a will contest tried before a jury upon issues framed in the Probate Court. The proponent of the alleged will of Daniel P. O'Sullivan is Cornelius R. Sullivan, and the contestants are children and heirs at law of the alleged testator. The judge submitted only one issue to the jury, namely, "Was Daniel P. O'Sullivan at the time of the execution of said alleged will of sound mind?" The jury answered, "Yes." The case comes here upon an exception of the contestants to that part of the charge to the jury in which the judge said, "Now, in this case the burden of proof that he was of unsound mind is against the contestants here. That is on the contestants. They have said he wasn't of sound mind. It is up to them to prove it by a fair preponderance of the evidence, because there is a presumption in law that every man or woman of legal age is of sound mind and mental capacity, and that he is sane, and that he can do anything he wants with his property, regardless of any desire of any person. He can give his property away to anybody, a stranger if he desires, if he is [of] sound mind, and because somebody is desirous is not any reason for invalidating the soundness of his mind." At the conclusion of the charge counsel for the contestants said to the judge, "Exception to `the contestants have the burden of proof by a preponderance of the evidence that the man was of unsound mind.'" We are of opinion that there was error in that part of the charge to which the exception was taken and that the exception was properly taken.
It was said in Santry v. France, 327 Mass. 174, at page 176, "... the burden was on the proponent of the will to satisfy the tribunal of fact by a fair preponderance of the evidence that the deceased was of sound mind and testamentary capacity when the instrument was executed. Claffey v. Fenelon, 263 Mass. 427, 430. Goddard v. Dupree, 322 Mass. *514 247. The presumption of sanity has effect only until evidence of want of capacity appears. McLoughlin v. Sheehan, 250 Mass. 132, 137."
The exception to the charge was properly taken even though no requests for instructions were filed. "It is true that in certain circumstances where there has been an omission to charge adequately, even in the absence of specific requests by counsel, and where attention is properly directed to the omission and it is not remedied, an exception may be sustained if necessary to render substantial justice." Donnelly v. Larkin, 327 Mass. 287, 289. "A judge should instruct the jury fairly, clearly, adequately, and correctly concerning principles that ought to guide and control their action." Mahoney v. Gooch, 246 Mass. 567, 571. The matter of who had the burden of proof might have been an important factor in the minds of the jury in their determination of the answer to the question submitted to them. Failure to instruct the jury correctly on this aspect of the case was error.
Exceptions sustained.
