Bartis v. Bartis
| Decision Date | 31 January 1966 |
| Citation | 107 N.H. 34,216 A.2d 784 |
| Parties | Stanley J. BARTIS, Ex'r, Appellant, v. John C. BARTIS et al., Appellees. |
| Court | New Hampshire Supreme Court |
Clancy & O'Neill, Nashua (Frank B. Clancy, Nashua, orally), for appellant.
Stein, Cleaveland & Rudman, Nashua, (Morris D. Stein, Nashua, orally), for appellees John C. and William J. Bartis.
Charles J. Flynn, Nashua, guardian ad litem (by brief and orally), for minor children of Mildred B. Laforest.
Appeal from a decree of the probate court disallowing the will of Lena M. Bartis, late of Nashua, upon proof is solemn form. Trial by the Court (Loughlin, J.), who found 'on all the evidence that the will was procured by undue influence' and dismissed the appeal. The appellant's exceptions to certain rulings during the course of the trial and to the denial of his motion to set aside the decree were reserved and transferred by the Presiding Justice.
The contested will was executed on December 27, 1961. Mrs. Bartis deceased on May 6, 1962, survived by three sons, all of whom are parties to these proceedings, a daughter Agnes B. Fezolla, and children of a deceased daughter Mildred Laforest, who were represented by the guardian ad litem. By the will Agnes B. Fezolla was bequeathed $6,000, John C. Bartis $5,000, and William J. Bartis $4,000. Certain war bonds were bequeathed to grandchildren and the residue of the estate was left to the appellant Stanley J. Bartis, who was named executor.
The inventory of the estate showed personal estate of approximately $25,000 which included a mortgage note of Stanley J. Bartis, upon which a balance of $11,464.98 was unpaid. It also showed real estate appraised at $31,000.
The executor's appeal assigned as reasons therefor that the will offered for probate was executed as required by law and not procured by undue influence, duress or fraud and should have been reaffirmed upon re-examination; and that the decree of the probate court was erroneous, unreasonable, unjust and contrary to the law and the evidence.
The evidence disclosed that the decedent, a widow, had lived for some thirty-five years in her home in Nashua. Her unmarried son, Doctor Stanley J. Bartis had lived and conducted a dental practice there for some sixteen years prior to her decease, maintaining an office next to his mother's living quarters. In March 1960, Mrs. Bartis conveyed the home to Stanley in consideration of his note and mortgage in the sum of $15,600, conditioned upon provision of a home for Mrs. Bartis therein, for life, free of any charges for rent, taxes, utilities and maintenance.
There was evidence that prior to this transaction, disposition of the house had been the subject of family discussion, in an effort to provide equal interests in the property for Mrs. Bartis' children. It could be found that Attorney Velishka, who had done Mrs. Bartis' legal business for many years, was importuned by Stanley to persuade his mother to sell the property to him, and that when Velishka declined to draw a deed for that purpose in the absence of agreement by the children to the arrangement, Stanley procured the services of Attorney Lipnick for the purpose. From the testimony of Attorney Velishka it could be found that the relationship between Stanley and his mother was at that time 'very, very bad,' and that she wished to have all the children share the property equally, and felt that Stanley could not pay for it. Velishka testified that she would call him on the telephone and say, Velishka also testified that upon occasions when he had visited Mrs. Bartis he heard Stanley call her names that he never heard anyone call their mother, that Stanley complained of her cooking, complained that she did not want to do anything for him, and that she was overreligious; and that he had said,
There was evidence that after the home was conveyed to Stanley, the other sons were forbidden by Stanley to come to the house, and that Mrs. Bartis was ...
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