Dart v. R.I. Hosp. Trust Co.

• Decision Date: 12 June 1923
• Docket Number: No. 5654.,5654.
• Citation: 121 A. 211
• Parties: DART et al. v. RHODE ISLAND HOSPITAL TRUST CO.
• Court: Rhode Island Supreme Court

121 A. 211

DART et al.

v. RHODE ISLAND HOSPITAL TRUST CO.

No. 5654.

Supreme Court of Rhode Island.

June 12, 1923.

Exceptions from Superior Court, Providence and Bristol Counties; Arthur P. Sumner, Judge.

Application by the Rhode Island Hospital Trust Company for the probate of the will of Edwin M. Dart, deceased, opposed by Albert E. Dart and others. On appeal from decree of municipal court admitting the will to probate, verdict was directed in favor of the will, and contestants except. Exceptions to direction of verdict sustained, and other exceptions overruled, and case remitted for retrial.

William S. Flynn, McGovern & Slattery, and Fred B. Perkins, all of Providence, for appellants.

Lyman & McDonnell, Tillinghast & Collins, Richard E. Lyman, and James C. Collins, all of Providence, for appellee.

RATHBUN, J. This is an appeal from a decree of the municipal court of the city of Providence admitting to probate an instrument purporting to be the last will and testament of Edwin M. Dart. The appeal was heard in the superior court by a justice sitting with a jury. At the conclusion of the testimony said justice directed a verdict in favor of the will. The case is before this court on the appellants' exceptions.

The appellants are children of Albert E. Dart, a deceased son of said Edwin M. Dart, who deceased June 5, 1920. The instrument in question, hereafter referred to as the will, was executed on April 23, 1918, when said Dart, hereinafter referred to as the testator, was 82 or 83 years of age. Said testator at the time of the execution of the will and at the time of his decease was married to and living with his second wife. No children were born of the second marriage. Two children were born of his first marriage, namely, said Albert E. Dart, the father of the appellants, who died before the execution of the will, and Willard C. Dart, the principal beneficiary under the will. The estate was inventoried at $210,800.

The testator by his will provided for his wife, as follows: All household furniture and books were bequeathed to her. She was given the use of the testator's house at Warwick during her life and the trustee under the will was directed to pay her $1,800 annually during her life. The will provides that the wife of said Willard C. Dart shall have an estate for life, or so long as she shall remain the wife or widow of said Willard C. Dart, in the estate occupied by herself and family in Edgewood. The will provides that certain indebtedness shall be canceled and that the Rhode Island Hospital Trust Company shall take the residue and remainder to hold during the life of the testator's widow in trust, to manage the estate, and after paying said widow $1,800 annually to permit the surplus income to accumulate during the life of said widow.

The will further provides that on the death of said widow said Willard C. Dart, provided he is then living, shall take an absolute estate in the remainder of the trust estate including accumulations; that if said Willard is not living at the death of said widow the lineal descendants of said Willard C. Dart by his said wife shall take an absolute estate in said remaining trust estate including accumulations; that, in the event that neither Willard C. Dart nor any of his lineal descendants by his marriage with his said wife are living at the death of the testator's widow, the lineal descendants of Albert E. Dart (who are the appellants) shall take an absolute estate in one half of said remaining trust estate and that the Home for Aged Men and Aged Couples shall take an absolute estate in the other half of the remaining trust estate. None of the appellants take under the will, except in the event that neither said Willard C. Dart nor any of his lineal descendants by his marriage with his said wife are living at the death of the testator's widow.

The twelfth clause provides in part as follows:

"The nature of the provisions hereinbefore contained in favor of the lineal descendants of my son Albert E. Dart [who was the father of these appellants] has been determined by me in consideration of circumstances which to me appear satisfactory and sufficient,"

The appellants relied upon the following reasons of appeal: (1) That at the time of the execution of the will the testator lacked testamentary capacity. (2) That the will "was procured to be made and executed by said Edwin M. Dart by undue influence exerted upon him by said Willard C. Dart said Anna Cora Dart and other persons."

The question presented is whether said justice erred in directing a verdict in favor of the will. In considering this question all evidence in favor of the appellants must be taken as true and the appellants "are entitled to the benefit of every favorable inference which may reasonably be drawn from the facts in evidence." Dawley v. Congdon, 42 R. I. 71, 105 Atl. 396. If there was any legal evidence before the jury which would have justified them in arriving at a contrary verdict the issues should have been submitted to the jury. See Reddington v. Getchell, 40 R. I. 463, 101 Atl. 123.

The testator was on friendly terms with the appellants who were his grandchildren. At the time the will was executed he was 82 or 83 years of age and was very deaf. He harbored a very strong prejudice against any one who smoked cigarettes. Witnesses testified that he was feeble and infirm, that at times his conversation was rambling and disconnected and that his memory was so defective that he would at times forget, within a few minutes, acts performed by himself. One of the appellants testified that in the summer of 1917 the testator "was failing very badly and his mind wasn't clear." He was unsuccessful in business until after he was 60 years of age. He frequently made the statement that he never had a nickle until he was 60 years old. The source of his fortune was a device which had been invented and patented by the father of the appellants. He told two of the appellants that he appreciated the fact that their father's invention gave him an opportunity to accumulate a fortune and that when he was dead the appellants would be well provided for. Before the will was executed the testator frequently told the different appellants that he would leave them all well provided for. In 1919, after the will was executed, the testator made a voluntary statement to the same effect to one of the appellants. The appellants at the time the will was executed and at the death of the testator were in humble circumstances. The testator at different times gave them some financial assistance.

Willard C. Dart was on very intimate terms with his father, the testator, who was accustomed to spend very much time at Willard's office. It appears that for a period of several years (including the time when the will was executed) up to the time of his last sickness he went, except when he was away from the city, to Willard's office either daily or on two or three days in each week. Willard testified that he asked his father to give him $1,000 and that thereafter his father...