Gendreau v. Radtke

• Decision Date: 03 August 1942
• Docket Number: No. 8419.,8419.
• Citation: 27 A.2d 848
• Parties: GENDREAU et al. v. RADTKE.
• Court: Rhode Island Supreme Court

27 A.2d 848

GENDREAU et al.

v. RADTKE.

No. 8419.

Supreme Court of Rhode Island.

Aug. 3, 1942.

Exceptions from Superior Court, Providence and Bristol Counties; Mortimer A. Sullivan, Judge.

Proceeding by Helen G. Radtke and others for appointment of named petitioner as administratrix of the estate of Oliva C. Gendreau, deceased. On appeal to the superior court from a probate court decree appointing named petitioner as administratrix, a jury returned a directed verdict for petitioner, and Alfred C. Gendreau and others bring exceptions.

Exceptions overruled, and case remitted to the superior court with direction.

Fergus J. McOsker, of Providence, for appellants.

Gerald W. Harrington, Bancroft Littlefield, and Edwards & Angell, all of Providence, for appellee.

MOSS, Justice.

This is an appeal to the superior court, duly taken by the eight surviving sons and daughters of Oliva C. Gendreau, late of the city of Providence in this state and hereinafter referred to as the decedent, from a decree of the probate court of that city, by which Helen G. Radtke, a daughter of a deceased son of the decedent, was appointed administratrix of the decedent's estate. This decree was entered on, and in accordance with, a petition filed by Helen G. Radtke and her three sisters, their father having left no son.

A jury trial was claimed in the superior court by the appellants. The reasons of appeal, as filed, were, in substance, that the decree was contrary to the law; that it was contrary to the evidence; that the appellants were sons and daughters of the decedent and objected to the appointment of the appellee as administratrix of her estate; and that there was no occasion for the appointment of an administratrix.

The case was tried before a justice of the superior court and a jury; and at the conclusion of the introduction of evidence for the appellants and evidence for the appellee, the trial justice denied a motion by the appellants that he direct the jury to return a verdict in their favor. He also granted a motion by the appellee that he direct the jury to return a verdict in her favor; and so directed the jury, who returned a verdict accordingly.

The case is now before us on a bill of exceptions filed by the appellants, the only exceptions therein set forth and relied upon before us being to the denial of the former of these motions and the granting of the latter of them. The following facts were established by the evidence.

The decedent, who died intestate on July 21, 1940, was the widow of Godfrey L. Gendreau, who was the father of her nine sons and daughters and who had died June 8, 1936, leaving a will by which he gave all his property to her. On May 28, 1936, when he was apparently in good health, a family gathering took place at his home, and nearly all his children were present. The appellee's father had previously died and Arthur Gendreau, the second son, who was blind, was not invited and was not present.

At this gathering were executed many typewritten instruments which had been prepared by an attorney, who was then the attorney for Godfrey Gendreau and his wife, and was the attorney for her until her death, and thereafter for the appellants. Certain of these instruments were deeds by which Godfrey Gendreau and his wife conveyed all their respective parcels of real estate, the total value of which was a good many thousands of dollars, to their sons and daughters who were present. These deeds were delivered to the grantees at this gathering.

Others of the instruments then executed, acknowledged and delivered were mortgages to Godfrey Gendreau and his wife and to the survivor of them, by the respective grantees under the above-described deeds and covering these properties and securing promissory notes by these grantees for the full values of the properties conveyed to them respectively. Still others of the instruments then executed by Godfrey Gendreau and his wife were releases and discharges of all but one of the mortgages then executed and also a receipt for one half of the amount secured by each of the same mortgages. All of these releases and discharges and receipts were left undated and were delivered to and retained by the abovementioned attorney.

The instructions to him were that he was to deliver these receipts to the respective mortgagors upon the death of the one first dying, of Godfrey Gendreau and his wife; and they were so delivered by him on the death of the former. Apparently, according to instructions given to him at the time of the meeting, the releases and discharges of the mortgages were delivered by him soon after the death of the decedent; and they bear the date of July 30, 1940, the last day before her death. Until that time interest on the mortgage notes had been regularly paid to her after her husband's death.

The mortgage above referred to, as not included in those of which releases and discharges were executed at the family gathering, was a first mortgage made to Godfrey Gendreau by Yvonne Richard, one of his daughters, and Alfred, Alvin and Albert Gendreau, three of his sons, and securing a note to him for $3,000. This note was then indorsed by him to Arthur Gendreau, his only other living son, to whom he also executed a transfer of the mortgage. This mortgage, the indorsed note and the transfer were, soon after the death of Godfrey Gendreau, delivered by other members of the family to Arthur Gendreau, to whom no real estate had been conveyed by his father or mother.

The mortgagors in that mortgage also executed and delivered at the family gathering a second mortgage on the same property to Godfrey Gendreau and his wife and to the survivor of them for $7,500. These mortgagees then executed a release and discharge of that second mortgage and also a receipt for half of the sum secured thereby, thus treating it in the same way as they treated all the other mortgages received by them at the family gathering, except the first mortgage which was transferred to Arthur Gendreau, as above stated.

No real estate was ever conveyed by either of them to Florence Gendreau, whose husband, their son Roderick, had died in 1920, or to any of his children. She had, some time after his death, brought a suit against his father to recover for an interest which she claimed that her husband had, at his death, in the laundry business owned and operated by his father and him and some other members of the family; and this suit had been settled by the payment of a small sum to her.

Later her health became poor and she was in need of money for the support of herself and children; and her father-in-law loaned her small sums from time to time, amounting finally to a little over $900, for which in 1931 she gave him a mortgage on some real estate which she owned. This mortgage and the note secured by it were discharged by him on June 3, 1936.

Not long after his death she became very ill and was almost helpless for several years, during which time his widow, the decedent, came to see her a number of times, always accompanied by one or more of her daughters, and expressed great sympathy for her.

Upon her husband's death the decedent received under his will a considerable amount of personal property consisting mainly of savings bank accounts and shares in the Morris Plan Bank. In the summer of 1936 she made a gift of $500 or thereabouts to each of her children; and in 1939 she gave each of them $1,000. A short time before her death she gave and delivered all her jewelry, furs and other personal belongings to her youngest daughter, Ida Laporte, according to the latter's testimony. This witness, the youngest daughter of the decedent, also testified that she always lived with her mother until the latter's death; that her father, at the time of his death, gave her the big safe and that she had always kept it, though her mother had the key to the locked compartments in it.

She then testified as follows:

"Q. Those bankbooks were kept in that same compartment all during her lifetime? A. Yes.

"Q. You are sure of that? A. Surely, until she gave them over.

"Q. When did she give them over? A. In March, 1940.

"Q. Then what was done? A. Well, naturally the ones that had bankbooks, she delivered to them, and they took them and kept them.

"Q. They were taken outside of the safe? A. No. She left them in the safe.

"Q. Were they in the same compartment they always had been kept in after March 28? A. Yes.

"Q. Who had the keys to that compartment? A. To tell you the truth, the safe was never locked. The safe was always unlocked.

"Q. How about that compartment, who had the keys? A. They stood on the safe.

"Q. The keys were kept in the safe? A. 'Yes.

"Q. In the lock? A. In the lock.

"Q. How long was that true, how long was that practice continued of keeping them in the door? A. Until now. They are always there."

As to bank accounts being given to her, she testified that her mother in March, 1940, gave her two, aggregating about $10,000; and said, at the same time, that she was giving bank accounts to Alfred.

On cross-examination she...