Apollonio v. Kenyon

• Citation: 101 R.I. 578,225 A.2d 778
• Decision Date: 24 January 1967
• Docket Number: No. 10846,10846
• Parties: Howard L. APOLLONIO v. Lawrence W. KENYON, Executor of the Will of Valecia L. Apollonio. Ex.
• Court: Rhode Island Supreme Court

Page 778

225 A.2d 778

101 R.I. 578

Howard L. APOLLONIO v. Lawrence W. KENYON, Executor of the Will of Valecia L. Apollonio.

Ex. No. 10846.

Supreme Court of Rhode Island.

Jan. 24, 1967.

Brosco & Brosco, Fred Brosco, Robert T. Flynn, Providence, for appellant

Letts & Quinn, Daniel J. Murray, Providence, Harold B. Soloveitzik, Westerly, for appellees.

OPINION

KELLEHER, Justice.

This is an appeal from a decree of the probate court of the town of Hopkinton admitting to probate a written instrument dated June 22, 1961, purporting to be the last will and testament of Valecia L. Apollonio who died sometime in April 1962, but whose body was not discovered until May 3, 1962. After a trial in the superior court, the jury returned a verdict in which they found that the instrument of June 22, 1961 was not her last will and testament.

The cause is before us on proponent's exceptions to certain rulings made before and during the trial and to the denial of his motion for a new trial.

First we should identify proponent who has appealed this cause to us. Lawrence W. Kenyon, the sole beneficiary under the provisions of the alleged will, is the clerk of the probate court of the town of Hopkinton. He is also the town clerk. In Hopkinton the town council acts as the probate court. In this case, however, upon the request duly made by Howard L. Apollonio to the town council in its capacity as the probate court, James O. Watts, an experienced member of our bar, was appointed as the acting probate judge to hear Kenyon's petition to admit to probate the instrument which is the subject of this litigation.

While it would serve no purpose to set forth in detail the voluminous testimony elicited in the trial below, certain salient facts are recited so that one may gain a better perspective as to the testamentary trials and tribulations of the testatrix, Valecia.

The record shows that Valecia in the final seven years of her life executed four wills. The first was on January 4, 1955, when she and her husband, Donald L. Apollonio, executed wills. Valecia made two small bequests to charitable organizations whose prime functions were the care and shelter of animals, and then left the residue to her husband. If her husband predeceased her, Valecia's estate was to go to the secretary of the attorney who drew both wills. While the dispositions in each will are substantially the same, Donald designated the attorney to be his executor while Valecia's will called for her husband to act as her executor, and if he were not living then the attorney was to administer her estate. The secretary was described in Donald's will as a friend of his family.

Donald died in New York City on November 6, 1959. Upon being notified of her husband's death, Valecia began immediate preparations to go to New York so that she could identify and claim the body. She was unable to contact her attorney and thereupon engaged the services of another attorney whose offices were in Westerly, a town adjacent to Hopkinton, and together with him and a neighbor she set forth on her sad journey.

Being piqued at the inability to locate her original lawyer, Valecia upon her return to Rhode Island sent him a letter dated November 7, 1959 in which she stated that his services would no longer be required and that the Westerly attorney was to represent her. The record shows, however, that on December 9, 1959, Valecia executed the necessary documents to probate her husband's will. Her original attorney thereupon commenced his duties as the executor. The proponent here was also appointed appraiser of Donald's estate.

On December 21, 1959, Valecia executed another will. By its terms she left all her property to her Westerly attorney, and in the event he died before her the estate was to go to the attorney's wife. Valecia had also conveyed her real estate to the attorney. This deed was not recorded.

During this time, however, it appears that Valecia's displeasure with her original attorney, who was now acting as executor of Donald's estate, had ceased because the attorney began a series of conferences and negotiations with the Westerly attorney whereby the second will was destroyed, the unrecorded deed returned and a formal instrument revoking the December 21st will was executed by Valecia. Certain items of personal property which the testatrix had given to her second attorney were returned to her.

On July 22, 1960, Valecia executed a general power of attorney wherein she gave her original attorney complete management of her affairs. Subsequently, however, she once again became dissatisfied with his handling of her affairs and particularly his administration of her husband's estate. She thereupon contacted an attorney in Providence and in November 1960 there began another series of conferences and correspondence with the original attorney on one side and Valecia and her new counsel on the other. To protect his new client's interest the Providence lawyer entered his appearance in her behalf in the Hopkinton probate court. The proponent acknowledged that as probate clerk he received the entry of appearance and filed it with the records in the estate of Donald Apollonio. However, on December 3, 1960 Valecia wrote to the Providence attorney and informed him that she had examined the records of her original attorney and found everything in order and to her satisfaction. She celebrated this particular occasion by composing a poem entitled 'My Friend' and dedicated it to her first attorney. This poem is one of several authored by Valecia and made part of the record below.

On February 16, 1961, Valecia signed a waiver of notice of a hearing on the executor's first and final account on her husband's estate. This account was then presented to Kenyon in his capacity as probate clerk for an immediate hearing before the town council acting as the probate court. After consulting with the town solicitor, Kenyon declined to place it on the docket having been advised by the solicitor that the Providence attorney should be notified of the filing of the account and given an opportunity to examine its contents before any action would be taken on it.

Her poetical protestations of 'friendship' towards her original attorney to the contrary notwithstanding, Valecia on March 13, 1961 executed another instrument which authorized the Providence attorney to represent her. This was approximately one month after she had signed the waiver in connection with the first and final account of her husband's estate.

It was during this period of the year that Valecia executed her third will. Although this will was not in evidence, the testimony disclosed that her estate was left equally between her Providence attorney and Kenyon. The record shows that at this time she had been going to the town hall to consult with proponent.

On May 1, 1961, the account of the executor of her husband's estate was approved by the probate court whereupon the original attorney delivered to the Providence attorney all documents, securities and bankbooks he had in his possession, receiving a duly executed receipt for these items. A statement wherein Valecia's Providence counsel acknowledged that he had examined the executor's account and found it in order was filed in the probate court.

Thereafter, the securities formerly in the names of Donald and Valecia as joint tenants, but now in her name alone, and a bankbook showing $10,700 on deposit were delivered to the Providence attorney. These items remained in the attorney's possession until sometime after the testatrix' death. Valecia in turn had given certain documents and records to Kenyon who stored them in the vault in the town hall. Among these were statements by her Providence attorney of dividends he received in her behalf and which he had deposited in a checking account. Valecia, however, was unable to obtain the bankbook which was being retained by the attorney in Providence. During her visits to the town hall, Valecia told Kenyon of her disenchantment with her lawyer. She told the town clerk that she wanted to draw a will but was afraid of lawyers.

On June 22, 1961, Kenyon called his town solicitor whose office was in Westerly to determine if he would see Valecia. She was informed that the solicitor would see her that night at 7 p.m. at his home which is in Hopkinton. The testatrix asked Kenyon to meet her there because of her expressed fear of attorneys.

The solicitor testified that Valecia was punctual; that he inquired as to her dispositive intent; that when she told him she wanted to leave everything to Kenyon, he had her execute in her own handwriting a signed statement which said 'I want Mr. Lawrence Kenyon to have all I posess (sic) at the time of my death'; and that he then called in his wife who is also his secretary and she typed the will. The draftsman also stated that the will provided that the estate was to go to Mrs. Kenyon in the event her husband predeceased the testatrix. Kenyon was then designated as the executor. The preparation and execution of this instrument took about a half hour. The Kenyons arrived at the attorney's home at 7:30, and after the will had been executed joined Valecia in the solicitor's front room which he uses as an office. Upon leaving the house, Valecia gave the will to Kenyon and stated: 'It's all yours.' Kenyon took the will to his home and secreted it there for purposes of safekeeping.

On the next day, to wit, June 23, 1961, Valecia went to the Westerly branch of the bank wherein her savings were kept, executed a false affidavit in which she stated that her bankbook was lost, and applied for a new book. This bankbook was in fact in the possession of her Providence attorney. The bankbook application was duly advertised and on July 24, 1961, a new bankbook was issued. One week later she withdrew the entire account of over $10,700 in cash and put it in her bag and left the bank. While no one can account for the entire...