Gardner v. Frieze

• Decision Date: 23 November 1889
• Parties: GARDNER v. FRIEZE et al.
• Court: Rhode Island Supreme Court

19 A. 113

16 R.I. 640

GARDNER

v. FRIEZE et al.

Supreme Court of Rhode Island.

Nov. 23, 1889.

On appellant's petition for a new trial.

Henry J. Dubois, for appellant. C. Frank Parkhurst, for appellees.

DURFEE, C. J. This is an appeal from a decree of the municipal court of the city of Providence, admitting to probate the will of Phoebe L. Gardner. The will was executed August 3, A. D. 1886, when the testatrix was somewhat over 80 years old. It gives the larger part of her property to three daughters, and gives to her son, Walter S. Gardner, the appellant, only a trifling legacy. The reasons of appeal alleged are that the will was procured by fraud, deceit, and undue influence. On trial in this court the probate was opposed on those grounds. In support of the will the court admitted, subject to exception, testimony to the following effect, to-wit: That the testatrix had told her counsel, before the will was executed, that her said son annoyed her by his importunities for money; that lie had to pay her money due to her for a dower right, and had several times importuned her to forgive the payments; that he had had his share from his father's estate, and she would give him nothing; that she made these statements at different times during a number of years before the will was made, said counsel having drawn one or more earlier wills; that she made similar statements to the counsel's partner, and also said to him that she always intended to give her property to her daughters, said statement having been made to said partner some years before the will in controversy was executed. The jury returned a verdict sustaining the will. The case is before us for alleged error committed by admitting said testimony.

We do not think the court erred in admitting it. Judge Redfield in his treatise on the Law of Wills, says: It is every-day practice, where probate is resisted on the ground of fraud, undue influence, or surprise, to admit the declarations of the testator previously made as to his testamentary intentions; and that, when the will corresponds to the declarations, it excites much less apprehension of improper practices than when it differs from them. 1 Redf. Wills, 567, 568. Such, so far as we know, has been the practice in this state. It seems to us that no evidence can be more legitimate in disproof of fraud or undue influence, especially if the declarations have been repeated from time to time during a period of years before the making of the will and down to the making. The practice is well supported by authority. In Neel v. Potter, 40 Pa. St. 483, the...