Carr v. Macdonald, 1668.

• Decision Date: 03 April 1944
• Docket Number: No. 1668.,1668.
• Citation: 37 A.2d 158
• Parties: CARR v. MacDONALD et al.
• Court: Rhode Island Supreme Court

37 A.2d 158

CARR

v.MacDONALD et al.

No. 1668.

Supreme Court of Rhode Island.

April 3, 1944.

Appeal from Superior Court, Providence and Bristol Counties; Alexander L. Churchill, Judge.

Suit by Edward Carr, executor of the will of Clara Ethel Rocheford, deceased, against Lydia Gertrude MacDonald and others, to set aside the transfer of three savings accounts purporting to have been made by decedent to named respondent. From a final decree granting the prayer of the bill, respondents appeal.

Appeal denied and dismissed, decree affirmed, and cause remanded.

Eugene L. Jalbert, of Woonsocket, for complainant.

John J. Mee, of Woonsocket, for respondents.

CAPOTOSTO, Justice.

This bill in equity is brought by the executor of the will of Clara Ethel Rocheford, late of the city of Woonsocket, deceased, to set aside the transfer of three savings accounts purporting to have been made by her to the respondent Lydia Gertrude MacDonald on November 17, 1941. After hearing on bill, answer, replication and proof, a final decree was entered in the superior court granting the prayer of the bill. The cause is before us on respondents' appeal from that decree.

The testatrix, who was seventy-two years old and a widow, died in the Woonsocket Hospital on November 19, 1941. The respondent Lydia Gertrude MacDonald, of Milton, Massachusetts, who calls herself Gertrude MacDonald and will be so called by us hereinafter, is the only child of the testatrix. In 1918 she married Bradbury MacDonald, who is also a respondent in this cause. The third and last respondent is the Old Colony Cooperative Bank, one of the three banks in which the testatrix had a savings account. Since Gertrude MacDonald is the principal respondent, the term respondent will hereinafter refer to her unless otherwise indicated.

It appears in evidence that the complainant is a lawyer who had practiced his profession in Boston, Massachusetts, for forty years. The respondent recommended him to her mother when she wanted to make a will. He drafted and the testatrix executed two wills, the first on April 17, 1937, and the second on September 13, 1938. Except for certain changes not material here, the provisions in both wills affecting the respondent and her husband are identical.

The 1938 will was offered for probate with the assent of the respondent and was thereafter duly allowed by decree of the probate court. No appeal having been taken from such decree, this will now stands as the true and valid will of the testatrix. After providing for the payment of debts, the testatrix gives all the rest and residue of her estate, “both real and personal” to the complainant in trust for the respondent, “to pay to her the net income thereof every three months and in addition thereto to pay her such amounts at such times as my trustee deems necessary for her sole comfortable maintenance and support, but in no event is any part of my estate paid to my said daughter to be used by her in the support of her husband, Bradbury MacDonald, of said Milton or expended on him for any purpose. If my daughter survives her said husband, then my trustee is instructed to pay over to her the unexpended balance of said trust fund. Should my daughter die before her said husband there is any part of said trust fund unexpended, I direct my trustee to pay such balance to my beloved sister, Nellie Castle, and my beloved brother, Joseph Hare, both of Croydon, England, in equal parts.” The will further provides that Carr, who is the executor and trustee therein named, shall furnish a surety company bond in each instance.

Complainant testified that when he received instructions from testatrix concerning the provisions of her will, she also told him why she did not want her daughter's husband to receive any benefit, directly or indirectly, from her estate, and that he then noted what she said in his diary, which he produced and used in the course of his examination at the trial of this cause. His testimony as to certain facts on this point was supported by other and independent evidence. All we need to say now concerning this matter is that it referred to the behavior of respondent's husband about the time of his marriage to her in 1918.

For the last four years of testatrix's life, respondent and her husband made weekend visits to the testatrix, who lived alone in Woonsocket. On the evening of November 14, 1941, the testatrix, who had been suffering from diabetes for over seven years, fell to the floor of her kitchen and, being unable to move, remained there until her plight was discovered by neighbors the next morning. They first summoned the police and then notified the respondent. The police surgeon, Dr. Edward L. Myers, who came in response to the police call, found no serious visible injury to the testatrix, but upon learning from her that she was diabetic, he advised her to go to a hospital. Her answer was that she would discuss the matter with her daughter, who was coming that afternoon, whereupon the doctor promised to come back later in the day. When he returned, he was informed by the testatrix, in the presence of the respondent and her husband, that she had decided to go to the hospital. The matter of the bankbooks now under consideration originated in the course of this conversation. The testatrix died at the hospital four days later.

What occurred during these four days is the subject of much conflicting and often contradictory testimony, only the substance of which we will attempt to state. We note here that unless otherwise specified Dr. Myers, the respondent and the respondent's husband were present at all the conversations with the testatrix to which we refer. To avoid confusion, we will first state the testimony in reference to the alleged gift of the bankbooks and then set forth the testimony respecting testatrix's physical and mental conditions.

Doctor Myers testified that before the testatrix was sent to the hospital he asked her if her affairs were in order and that she replied affirmatively, saying that she had made a will. She then also told him that she had some bankbooks which “she wished to give to her daughter”, whereupon he informed her that it was “not as simple as all that”; that she would have to go through the “necessary procedure”, and that she replied: “I realize that, that can be taken care of the first of the week.” He further testified that as he was leaving the house, the testatrix was “then directing her daughter, pointing to the room where she could find those bank books.”

On this point, respondent testified that her mother spoke to Dr. Myers as follows: “ ‘I have some bank books and some money I want to give my daughter.’ He said, ‘Oh, you have some bank books you want to give the daughter and you want to give her the money?’ She says, ‘They are in the top drawer in the blue room.’ Dr. Myers says, ‘You can't do it, anything as easy as that. You can't just give your daughter this money. You have to sign some forms.’ My mother says, ‘All right, will you take care of it?’ ”, which remark, according to the respondent, was addressed to both Dr. Myers and herself.

The next incident in connection with the bankbooks took place at the hospital on Monday morning, November 17. Doctor Myers testified that, after examining the testatrix, the conversation turned to the matter of the bankbooks; that the respondent had with her the necessary bank forms to effect a transfer of those books; that, addressing the testatrix, he asked her “if it was her intention to give the bank books and the contents thereof to her daughter”, and that she said “Yes”; that after the bank forms, which were already filled out, were read to the testatrix, she signed them by mark, as he advised her that “making her cross would be just as good as making her signature, because she had to go through the operation three different times”; and that he and a nurse then signed as witnesses. Each form that the testatrix so signed directed that the name of the respondent be added to the particular account, thus putting the title of the account in Mrs. Ethel Rocheford or Mrs. Gertrude MacDonald, payable to either or to the survivor.

In cross-examination it appears that Dr. Myers had also testified in this cause when the matter of a preliminary injunction was before the superior court. He then first unequivocally testified that he had read the bank forms which the testatrix signed and that he was absolutely sure that all three forms directed that the accounts therein identified be transferred in the name of the respondent alone. Later in his examination at that time he testified that he would be “very much surprised” to learn that each transfer was made out in the joint names of the testatrix and her daughter, payable to either or to the survivor. Confronted with this testimony at the hearing on the merits of this cause his explanation was that whether the transfer of the bankbooks was made in the name of the daughter alone, or in the joint names of the testatrix and her daughter was “not of such great importance”, and finally admitted that his memory was “faulty” at the earlier hearing.

We also find a substantial variance in his...