4. Wills 35-Adjudication of existence of Exceptions from Superior Court, Worcesfacts requisite for appointment of conserva-ter County; A. R. Weed, Judge. tor not decisive as to testamentary incapacity. Adjudications by probate court that essential facts existed requisite for appointment of conservator, under G. L. c. 201, § 16, were not decisive as to testamentary incapacity, but were to be considered in connection with all other pertinent evidence in will contest. 5. Wills 330(1)—Denial of request as to effect of appointment of conservator for testatrix held properly refused, in view of other instructions. There was no error in denying contestants' requested charge concerning proof of testamentary incapacity, based partly on determination of probate court appointing conservator, and instructing to effect that there is presumption that one is of sound mind, which stands "until there is other evidence which may control the presumption." 6. Trial 250-Certain illustration held not essential in instruction on burden of proof and weight of evidence. There is no requirement on part of trial judge to use illustration of even balance of scales and inclination of that balance according to effect of credible evidence in charging as to burden of proof and weight of evidence. 7. Wills 329 (2)—Instruction that burden of proof on executor to show testatrix was of "sound mind" held sufficient without adding "and memory." In the matter of the estate of Ellen Moore, deceased. Petition by the executor, Thomas J. McLoughlin, for allowance of will, contested by Katie Sheehan and another. Verdict for will, and contestants bring exceptions. Exceptions overruled. The charge on undue influence was as follows: "On the other hand, may I point out to you also, that when it comes to this second proposition, namely that somebody must have exerted influence, when you come to the question of that influence, if it was exerted after, it is of no consequence here. It must have been exerted at or prior to the making of the will. If it was not then, it is of no consequence to us. The family quarrels the people may have had after are not of any consequence except as they shed light on this question, first of her mental condition and secondly whether these people Mr. or Mrs. McLoughlin are shown to have actually exerted and attempted to exert influence over her prior or at the time of the making of this will. Of course if they did not exert it then whatever they said or did or didn't do afterwards cannot affect the question at all and should be excluded from your mind in coming to your conclusion. "It must be proved by evidence that satisfies you by a fair preponderance of the evidence that such an exertion of influence was made. It isn't a question of guesswork. It isn't a question of conjecture. It isn't a question merely of opportunity. The mere opportunity to influence another isn't undue influence. For that matter actual importunity isn't necessarily undue influence. It is perfectly proper for me to ask anyone of you to rememI haven't unduly influ ber me in your will. enced you by so doing. "It is only when by some action I have over8. Wills 330 (1)-"Testamentary capacity" come or controlled you and for the time being held sufficiently defined. Instruction that burden of proof was upon executor to show that testatrix was, at time will was executed, of "sound mind" was sufficient without adding words "and memory," under G. L. c. 191, § 1, if correct rulings were given as to what constituted soundness of mind. "Testamentary capacity" was sufficiently defined by instruction in substance that soundness of mind was sufficient mental capacity to understand nature of business in hand, to comprehend in general way extent of property, and to realize those persons with whom testatrix had daily relations and those who might have some claim on her bounty. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Testamentary Capacity.] I have got you so far within my grasp that you do something that your judgment does not dictate at all, that your will and your judgment have parted company. It is only then that we have undue influence." Frank B. Hall, James W. Burke, and John H. Mathews, all of Worcester, for executor. Francis P. McKeon, of Worcester, for contestants. RUGG, C. J. This case comes before us on exceptions taken in the superior court at 9. Wills 50-Not essential to testamentary the trial of two issues to a jury framed on capacity that testatrix must remember all a petition for the allowance of the will of the next of kin or presumptive heirs at law. late Ellen Moore. The issues related (1) to It is not essential to testamentary capacity the soundness of mind of the alleged testathat one executing will must under all circum-trix and (2) to the procurement of the will stances remember all next of kin or presump- through the fraud or undue influence of tive heirs at law no matter how separated in named persons. time and space from actual association. [1, 2] There was no error in the exclusion 10. Wills 332 Charge upon undue influ- of testimony to the effect that the witness ence held adequate and correct. thought the testatrix was a woman over Charge upon undue influence held adequate eighty years of age. It does not appear that this opinion was founded on personal obser and correct. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (145 N.E.) vation. In the bill of exceptions the age of, was not given in the form presented. Inthe testatrix is stated as a fact to have been about seventy years at the time of her death. That having appeared, further evidence on so subsidiary a point was irrelevant. In appropriate instances a witness may testify as to the age of another as a deduction from sufficiently specific facts within his own knowledge. Commonwealth v. O'Brien, 134 Mass. 198. Much must be left to the discretion of the trial judge on such a matter. structions were given to the effect that these adjudications had a "bearing upon the question of her mental capacity to dispose of her property by will" and that, although a person weakened both in body and mind, might have testamentary capacity, yet it was true that possibly, by reason of being feeble physically and mentally, such person might not have the same power to resist external influences intended to overcome and control the will. It cannot be said that there was error in the instructions given or in the denial of the request. Different people may be affected differently by physical and mental weakness in respect to tendency to yield to influences put forth by others. Natural obstinacy may be accentuated or inherent ductility become greater because of waning strength of body or mind. The adjudications of the probate court establishing facts necessary for the appointment of a conservator of the property of the testatrix were entitled to such weight as the jury saw fit to give them in determining the questions of her susceptibility to improper influence and of her soundness of mind. These adjudications were not decisive but were to be considered in connection with all the other pertinent evidence. That was the substance of the charge. Clifford v. Taylor, 204 Mass. 358, 90 N. E. 862. Breed v. Pratt, 18 Pick. 115. [3] A witness, asked to narrate a conversation had by her with the testatrix, was unable to fix its date, but it was shown in some other way to have been in February, 1917. On refusal by the trial judge to admit the conversation, the offer was made to show that, sometime between the years 1917 and 1921, the testatrix "appeared at the window of her third story flat" and said, "Thank God, the McLoughlins have gone. I will see you." We assume in favor of the contestants that reference was thus made to the persons charged with exercising undue influence. It is stated in the exceptions as a fact that the McLoughlins, from July, 1917, until her death, either lived in the same tenement or in the same house with the testatrix. There was no error in the exclusion of the question. Construed strictly, the offer of proof was not directed to the time at which the witness had the knowledge. It did not correlate with the question. Hallwood Cash Register Co. v. Prouty, 196 Mass. 313, 82 N. E. 6. Construed according to its terms, the offer related to a time subsequent to the ex"If, upon all the evidence, including the usual ecution of the will. Giving to the excepting presumption of sanity, and the effect of the judicial determination of the facts necessary to party the broadest construction of the ex-be proved in order to authorize the probate ception, there was no error. The matter was at best remote from any issue on trial and might well have been excluded in the exercise of sound judicial discretion. The case is distinguishable from Whitney v. Wheeler, 116 Mass. 490. [5] There was no error in the denial of the fifth request. It was in these words: court to appoint a conservator, the jury find that the scales of proof and judgment are in even balance, then the finding of the jury must be for the contestants, since the executor has failed to sustain the burden of proof." Instruction was given to the effect that there is a presumption that each one is of sound mind and that that presumption stands "until there is other evidence which may control the presumption." This was sufficiently favorable to the contestants. Richardson v. Bly, 181 Mass. 97, 63 N. E. 3; Duggan v. Bay State Street Railway, 230 Mass. 370, 378, 119 N. E. 757, L. R. A. 1918E, 680; Commonwealth v. De Francesco, 248 Mass. 9, 142 N. E. 749. See Clifford v. Taylor, 204 Mass. 358, 361, 90 N. E. 862. [4] It appeared in evidence that a conservator of the alleged testatrix was appointed several months before the date of the instrument offered for probate as her last will, and that her property continued to be under a conservator until her death. There were, within the calendar year during which the alleged will was executed, two or three successive adjudications by the probate court that the essential facts existed requisite for the appointment of a conservator under the statute (now G. L. c. 201, § 16), namely, incapacity to care for her property "by reason [6] There is no requirement on the part of advanced age or mental weakness." It is of the trial judge to use the illustration of stated in the exceptions that the conservator the even balance of scales and the inclinawas "appointed by reason of her advanced tion of that balance to the one side or the age." The contestants requested a ruling to other according to the effect of credible evithe effect that these adjudications were evidence in charging a jury as to the burden of dence that at the date of the making of the proof and the weight of evidence. It may alleged will the deceased "was not of suffi- be convenient or graphic; it is not essential. cient mental capacity to resist the pressure The charge by the trial judge was correct upon her of strong influence." This request and adequate as to the burden of proof rest ing upon the respective parties touching the be regarded not as conclusive and binding, but two issues on trial. subject to re-examination and revision. [7] The jury were instructed that the burden of proof was upon the executor to show that the testatrix was at the time the will was executed of "sound mind." That is the statutory description of testamentary capacity. G. L. c. 191, § 1. While not infrequently, in discussing testamentary capacity, the 3. Municipal corporations words "sound and disposing mind and memlating to building restrictions held valid. ory" have been used, it is sufficient, if corG. L. c. 40, § 25, enacted pursuant to rect rulings be given as to what constitutes Const. Amend. art. 60, authorizing building soundness of mind without adding as a sub-zones, is not obnoxious to commonwealth or stantive part of testamentary capacity a federal Constitutions. definition of memory. Fuller v. Sylvia, 240 Mass. 49, 54, 133 N. E. 384. [8] The jury were told in substance that soundness of mind in respect to making a will was sufficient mental capacity to understand the nature of the business in hand, to comprehend in a general way the extent and value of the property to be disposed of, and to realize those persons with whom she had daily relations and those persons who might have some claim on her bounty. This principle was repeated in effect in different forms of words. This is in conformity to numerous decisions. Whitney v. Twombley, 136 Mass. 145, 147; Dunham v. Holmes, 225 Mass. 69, 71, 113 N. E. 845. [9] The charge is not fairly open to the construction that the jury were not told to take into account the testatrix's capacity to grasp her relations to all who might naturally be regarded by a person in her situation as natural objects of her remembrance, even though the exact phrase of the request was not adopted. It is not essential to testamentary capacity that the one executing a will must under all circumstances remember all the next of kin or presumptive heirs at law, no matter how far separated in time and space from actual personal association. [10] The charge upon undue influence was adequate and correct. It was in conformity to established principles. Neill v. Brackett, 234 Mass. 367, 369, 370, 126 N. E. 93, and cases there collected; Craig v. Lamoureux, 1920 A. C. 349, 356, 357. Exceptions overruled. BUILDING INSPECTOR OF LOWELL v. (Supreme Judicial Court of Massachusetts. Middlesex. Oct. 18, 1924.) 1. Courts 90(1) — Opinions of Justices to House of Representatives not conclusive. Opinions of the Justices, given to House of Representatives as to constitutionality of statutes pending, under Const. pt. 2, c. 3, art. 2, are advisory in nature, are given without benefit of argument, are liable to error, and must 601-Statute re 4. Municipal corporations 601-Description of building zone held sufficiently definite. Section of ordinance defining building district as including all lands located or fronting upon each section of each accepted street between boundary lines of each two adjacent intercepting streets, or between end of such street and first adjacent intersecting street, is sufficiently definite to identify land, under G. L. c. 40, § 25. 5. Municipal corporations 625-Division in to business and residence districts held not unreasonable. Ordinance, creating as business district any building district in which not less than one-half ground floor frontage of both district and frontage on other side of street are at time ordinance goes into effect devoted to business or industry, with certain exceptions held not to provide unreasonable division into business and residence districts, under G. L. c. 40, § 25. 6. Municipal corporations 601-Difficulties in interpretation of ordinance immaterial as to validity. tion of zoning ordinance as to other states of Difficulties which may arise in interpretafacts do not render ordinance invalid, under G. L. c. 40, § 25. 7. Municipal corporations 63(2)-Every intendment in favor of zoning ordinances, but they are subject to investigation. Every intendment is to be made in favor of zoning ordinance, and courts will not, except in clear cases, interfere with exercise of power, but by-laws and ordinances undertaking to regulate useful business enterprises are subject to investigation with view to determining whether they are lawful exercise of police power or arbitrary interference with constitutional rights. & Municipal corporations 122(2) — Presumed council enacted zoning ordinance to subserve public welfare. It must be presumed that city council enacted a zoning ordinance with purpose to subserve public welfare. 9. Municipal corporations 626—Provision in zoning ordinance area should be restricted on request of interested persons invalid. If zoning ordinance contained any provision that any area should be restricted upon request of certain persons more or less interested, it would be invalid. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (145 N.E.) 10. Municipal corporations 626 Districts established by general rule with power in board to relax rigidity valid. Where building districts are established by some rational general rule, there is no invalidity in provision in ordinance which enables city council in exercise of sound judgment to relax rigidity of bounds of districts when threefourths of landowners in immediate neighborhood so request. Report from Superior Court, Middlesex County; F. J. Hammond, Judge. Petition in equity by Francis A. Connor, Inspector of Buildings of the City of Lowell, to restrain Joseph Stoklosa from erecting building for business purposes in violation of an ordinance enacted in pursuance of provisions of chapter 40, section 25, of the General Laws. On report. Restraining order granted. Patrick J. Reynolds, of Lowell, for plain tiff. Wm. D. Regan, of Lowell, for defendant. RUGG, C. J. This is a suit in equity by the inspector of buildings of Lowell to restrain the defendant from erecting a certain building for business purposes in that city in violation of an ordinance enacted pursuant to G. L. c. 40, § 25. That section authorizes any city or town by ordinance or by-law to divide its territory into districts or zones, to restrict the use of buildings for trade and industry, for tenement houses and for dwelling houses to designated areas and to require such buildings to conform to establish regulations as to construction and use. This authority and the limitations and regulations for its exercise are set out with some particularity in G. L. c. 40, §§ 25-30, both inclu sive. The constitutionality of the statute is assailed by the defendant. Manifestly the statute was intended to be enacted pursuant to the authority conferred by article 60 of Amendments to the Constitution, which is in these words: [1] Such opinions are rendered in accordance with the mandate of the Constitution (chapter 3, art. 2), and express views resting upon judicial investigation and consideration. They are advisory in nature, are given without the benefit of argument, are liable to error and must be regarded not as conclusive and binding but subject to reexamination and revision. When called upon to decide the same questions coming before them as a court, the justices guard themselves most sedulously against any influences flowing from their previous consideration. Green v. Commonwealth, 12 Allen, 155, 164; Young v. Duncan, 218 Mass. 346, 351, 106 N. E. 1; Perkins v. Westwood, 226 Mass. 268, 272, 115 N. E. 411; Loring v. Young, 239 Mass. 349, 361, 132 N. E. 65. There has been given to the questions now presented the most careful, thorough and painstaking investigation and reflection which the sense of judicial obligation can impose. [2, 3] The conclusion now reached in the case at bar is that article 60 of the Amendof the sections of the statute here attacked, is not violative of any provision of the Constitution of the United States and that the sections of the statute are not obnoxious to monwealth or of that of the United States. any provision of the Constitution of this comThe reasons which now seem decisive and the supporting authorities are stated at large in while to expand the bulk of our reports by the advisory opinion. It is hardly worth covering the same ground again. Without further present discussion, summarization, that opinion is adopted as the judgment of amplification, restatement or paraphrase, the court in the case at bar. It covers every ments, so far as it authorizes the enactment constitutional phase which has been argued or which has occurred to us. That conclusion is supported by numerous cases most of which have been decided since Co. v. Williams, 229 N. Y. 313, 128 N. E. 209; that opinion was rendered. Lincoln Trust Ware v. Wichita, 113 Kan. 153, 214 Pac. 99; "The general court shall have power to limit Des Moines v. Manhattan Oil Co., 193 Iowa, buildings according to their use or construc- 1096, 184 N. W. 823, 188 N. W. 921, 23 A. L. tion to specified districts of cities and towns." R. 1322; State v. Harper, 182 Wis. 148, 196 The justices were requested to give their N. W. 451; State v. New Orleans, 154 La. opinion to the honorable House of Represen- 271, 97 South. 440; Salt Lake City v. Westtatives as to the constitutionality of the sec- ern Foundry & Stove Repair Works, 55 Utah, tions of the statute here in question while 447, 187 Pac. 829; State v. Houghton, 142 they were pending and before their enact- Minn.. 28, 170 N. W. 853; State v. Houghton, ment. The opinion was expressed that the 144 Minn. 1, 174 N. W. 885, 176 N. W. 159, proposed act, now embodied in substance in 8 A. L. R. 585; Ex parte Quong Wo, 161 Cal. the sections here attacked, would not vio- 220, 118 Pac. 714. There are decisions to the late either the Constitution of this common- contrary. Spann v. Dallas, 111 Tex. 350, 235 wealth or that of the United States, and S. W. 513, 19 A. L. R. 1387; State v. McKelthat article 60 of the Amendments of the vey, 301 Mo. 1, 256 S. W. 474; Handy v. Constitution, in that it authorized the enact- South Orange, 99 N. J. Law, 118 Atl. ment of the proposed statute, was in no re- 838; Vernon v. Westfield (N. J. Sup.) 124 spect in contravention of any provision of Atl. 248. Compare Cliffside Park v. Cliffside, the Constitution of the United States. Opin- 96 N. J. Law, 278, 114 Atl. 797; Ambler Realion of Justices, 234 Mass. 597, 127 N. E. 525.ty Co. v. Euclid (D. C.) 297 Fed. 307. Other For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes decisions having a contrary appearance may not at the time of the passage of the ordirest upon other grounds. Byrne v. Mary-nance devoted to business or industry, other land Realty Co., 129 Md. 202, 98 Atl. 547, L. than those specified in section 2, shall not R. A. 1917A, 1216; Clements v. McCabe, 210 be used for, or altered or converted to, busiMich. 207, 177 N. W. 722; State v. Edgecomb, ness uses except as provided in the section 108 Neb. 859, 189 N. W. 617, 27 A. L. R. 437. | following. The effect of this section is simNone of them were decided in view of constitutional provisions like those of article 60 of the Amendments. So far as they are at variance with the views here expressed and set forth at length in Opinion of Justices, 234 Mass. 597, 127 N. E. 525, we are not inclined to follow them. [4] It is urged that the ordinance transcends the authority conferred by the statute and hence is invalid. This contention requires some analysis of the ordinance. Its first section defines a building district as including "all lands locating or fronting upon each section of each accepted street between the boundary lines of each two adjacent intercepting streets or between the end of said street and the first adjacent intersecting street." No argument against the validity of this section has been addressed to us. It seems sufficiently definite to identify land with reference to streets. ply to insure a reasonable permanency to the building districts in conformity to their initial establishment. It secures the landowner against changes except upon the observance of certain definite formalities. If these are reasonable, there is no just ground for complaint. The main attack centers on section 5 of the ordinance. Its provisions are in substance that no building in a residence district can be erected or altered for purposes of business or industry unless upon application accompanied by written consents of owners of not less than three-fourths of all lands used for other than business or industrial purposes which front on the same side of the street and which lie between the two intersecting streets nearest to and on either side of the land in question or within four hundred feet on either side thereof in case the nearest intersecting street is more than that distance, therefrom, and also of all lands fronting upon the other side of the street and directly opposite said land, and of all lands immediately in the rear thereof, and provided further that the city council shall after public hearing so order. The second section creates as a business district any building district in which "not less than one-half the ground floor frontage of both the district and the frontage on the other side of the street immediately opposite said district are at the time this ordinance goes into effect devoted to business or industry other than farming, gardening, or the conduct of a boarding or lodging house, and a building district which is manifestly in-power was stated in Dobbins v. Los Angeles, tended to be devoted to business or industry." The third section provides that all other building districts not described in section 2 shall be known as residence districts. [7] The law as to the validity of ordinances respecting limitations upon the use of real estate by the exercise of the police 195 U. S. 223, 235, 236, 237, 25 Sup. Ct. 18, 20 (49 L. Ed. 169), in these words: "It may be admitted that every intendment is to be made in favor of the lawfulness of the [5, 6] A division into business and resi- exercise of municipal power, making reguladence districts on the basis thus provided is tions to promote the public health and safety, not unreasonable. In substance it was up- and that it is not the province of courts, exheld in Welch v. Swasey, 193 Mass. 364, 79 cept in clear cases, to interfere with the exerN. E. 745, 23 L. R. A. (N. S.) 1160, 118 Am. cise of the power reposed by law in municipal St. Rep. 523, affirmed in 214 U. S. 91, 29 Sup. and the health and welfare of the people in corporations for the protection of local rights Ct. 567, 53 L. Ed. 923; Ayer v. Commission- the community. But notwithstanding this geners on Height of Buildings, 242 Mass. 30, 32, eral rule of the law, it is now thoroughly well 136 N. E. 338. There is nothing in the agreed settled by decisions of this court that municstatement of facts which indicates that the ipal by-laws and ordinances, and even legislaordinance operates oppressively or inequit- tive enactments undertaking to regulate useful ably. Every such division may injure some- business enterprises, are subject to investigabody; but, if it appears to have been made in tion in the courts with a view to determining the public interest and to be reasonable in its cise of the police power, or whether under the general features, and there is nothing out-guise of enforcing police regulations there has side the ordinance to indicate that its purpose been an unwarranted and arbitrary interferwas to persecute or abuse, it will not be ence with the constitutional rights to carry on stricken down merely because a particular a lawful business, to make contracts, or to use individual may think himself aggrieved or may be in truth injured. The exceptions in section 2 do not affect the defendant. Difficulties which may arise in the interpretation of this ordinance as to other states of facts do not render the ordinance invalid. The fourth section provides that land and buildings within the residence district and whether the law or ordinance is a lawful exer "The state has and enjoy property. |