Kishfy v. Kishfy

• Decision Date: 14 May 1968
• Docket Number: No. 249-A,249-A
• Parties: Fred W. KISHFY et al. v. Mary KISHFY, Executrix. ppeal.
• Court: Rhode Island Supreme Court

Page 827

241 A.2d 827

104 R.I. 61

Fred W. KISHFY et al. v. Mary KISHFY, Executrix.

No. 249-Appeal.

Supreme Court of Rhode Island.

May 14, 1968.

Edward I. Friedman, Mary Ellen McCabe, Providence, for plaintiffs

Corcoran, Foley, Flynn & Treanor, Francis R. Foley, Pawtucket, for defendant.

OPINION

PAOLINO, Justice.

This case is before us on the plaintiffs' appeal ¹ from a judgment entered on a jury verdict ² in favor of the defendant which declared that a written instrument dated July 13, 1950, was the last will and testament of William Kishfy, who died on April 4, 1958. The judgment approved the admitting to probate of said instrument by the probate court of the city of Pawtucket.

The plaintiffs have based their appeal on the following grounds: 1) That the trial justice erred in refusing to grant their motion for a new trial; 2) that the trial justice abused his discretion in refusing to grant their motion for a continuance; 3) that the trial justice abused his discretion by limiting the scope of their examination of various witnesses; 4) that certain actions, expressions, statements and evidentiary rulings by the trial justice constituted prejudicial error; 5) that the trial justice erred in refusing to grant certain requests for instructions to the jury.

The pertinent facts are as follows. The plaintiffs, hereinafter referred to as the contestants, are the testator's seven children by his first wife, Sadie Kishfy. The defendant, hereinafter referred to as the proponent, is the testator's wife ³ by a second marriage and the sole beneficiary under his will.

The contestants had based their appeal to the superior court on the ground that the testator's will was the product of undue influence exerted upon the testator by the proponent. In July 1948, the testator and Sadie had engaged in litigation concerning the ownership of certain bank accounts, bonds, jewelry and real estate. The matter was settled in December 1948, and thereafter, in January 1949, the testator and Sadie went to South America to visit a son living in Chile.

On May 8, 1949, Sadie died in Chile leaving a will dated July 2, 1948, wherein she left her husband a token amount of $1, and left all the rest, residue and remainder of her estate to her children. The seventh paragraph of the will read as follows:

'Seventh: In the event that at my decease I should own property which has been placed in my name and in the name of another or others jointly, whether consisting of real estate, stocks and bonds, bank accounts or other property, I hereby declare that the addition of the names other than my own to the instruments indicating joint ownership was for personal convenience only and that such other persons have no legal or equitable interest therein. I direct that all of said property become a part of the rest and residue of my estate and be distributed in accordance with the provisions of paragraph Fifth of this my Last Will And Testament.'

After his wife's death Mr. Kishfy engaged counsel to protect his interest and left for a trip to Syria. While there, he met, and on August 8, 1949 married defendant, a lady much younger than himself. In the meantime, by petition dated July 18, 1949, the first wife's will was presented to the probate court of the city of Pawtucket for probate and was admitted to probate by a decree entered on October 13, 1949. Mr. Kishfy returned to this country in September 1949, and through his counsel claimed an appeal to the superior court from the decree admitting his deceased wife's will to probate. His second wife, the proponent, came to this country in January 1950.

On July 13, 1950, while the contest between Mr. Kishfy and his children over his first wife's will was still pending, Mr. Kishfy executed the will which is the subject of this contest. After directing the payment of his debts and funeral expenses, he devised and bequeathed the residue of his estate to his second wife, Mary Kishfy, and he expressly stated that his failure to provide for his children, whom he named, was not occasioned by accident or mistake.

In October, 1950 the contest between Mr. Kishfy and his children over Sadie's will was settled. Mr. Kishfy continued to live with his second wife until his death in 1958.

Before considering contestants' grounds for appeal, we note that the contestants have stated in open court that they do not wish to press their objection to their denial of a motion for a new trial by the trial justice. Accordingly, we shall treat only contestants' four remaining contentions, and, for purposes of convenience, shall do so in the order raised.

The contestants first contend that the denial of their motion to continue the case constituted an abuse of discretion by the trial justice. The case had originally been assigned for trial to March 17, 1967. On that day counsel for the law firm representing contestants appeared before a justice of the superior court and stated that the contestants did not wish to be represented by him. Accordingly he moved for a continuance in order to give the contestants time to engage other counsel. The motion was denied by the trial justice who ordered counsel to remain in the case. Thereafter, however, said motion was renewed by contestants' newly engaged counsel when the case was called for trial on March 20, 1967.

After listening to counsel's argument that he needed more than a weekend to prepare his case, the trial justice said:

'I'm going to deny the motion to pass the case for a number of reasons. This case was first heard in the Probate Court of Pawtucket on July 7, 1958, which is quite a while ago. It is also my understanding there were some transcripts taken of that hearing, so that it would seem by this time both sides * * * pretty much know the contentions of the respective parties. * * *'

The trial justice also said:

'* * * Now, in all fairness to the opponents, Mr. Friedman, if in the course of the trial you feel you need additional time, I will have no hesitation, that I will give you a continuance. I understand your situation; I sympathize with you. But I feel we should get started. If in the course of the trial you feel you need a continuance, in Good Faith, we will have it. The testator died in the early part of 1958, and I do think sooner or later, it has to be disposed of.'

No further discussion of the evidence pertaining to this issue is necessary. The granting or denial of such a motion is within the discretion of the trial court and his action will not be reversed unless there is a clear abuse of discretion. D'Acchioli v. Cairo, 87 R.I. 345, 349, 141 A.2d 269, 271. The burden of proving that the denial of a motion for a continuance will constitute prejudicial error is on the party moving for a continuance. Williams v. Altruda, 74 R.I. 47,...