Marcinko v. D'Antuono

• Decision Date: 14 June 1968
• Docket Number: No. 117,117
• Parties: , 37 A.L.R.3d 874 Joseph R. MARCINKO v. Anna L. D'ANTUONO and John Marcinko, Executors u/w of Anicet Marcinko. &-Appeal.
• Court: Rhode Island Supreme Court

Page 104

243 A.2d 104

104 R.I. 172, 37 A.L.R.3d 874

Joseph R. MARCINKO v. Anna L. D'ANTUONO and John Marcinko, Executors u/w of Anicet Marcinko.

No. 117&-Appeal.

Supreme Court of Rhode Island.

June 14, 1968.

David J. Kehoe, Providence, for plaintiff

Woolley, Blais & Quinn, James M. Shannahan, Pawtucket, for defendants.

OPINION

PER CURIAM.

This cause was heard before a justice of the superior court sitting with a jury on the appeal of the plaintiff, sometimes hereinafter referred to as the contestant, from a decree of the probate court of the city of Providence admitting to probate a written instrument dated October 11, 1958, purporting to be the last will and testament of his father, Anicet Marcinko, who died on October 20, 1961. The decree granted letters testamentary to the defendants Anna L. D'Antuono and John Marcinko, sometimes hereinafter referred to as the proponents, who are the sister and brother of the contestant and the persons named as executors in the instrument in question.

This dispute arises from the fact that the purported will provides for his brothers and sisters, but disinherits the contestant. The issues presented raise the following questions:

1. Whether said Anicet Marcinko was induced to sign the said instrument purporting to be his last will and testament by and through undue influence exerted upon him by other persons.

2. Whether said Anicet Marcinko, at the time of the alleged signing of said instrument, comprehended the nature and intent of said document, understood the contents of said document, and intended that the said Joseph R. Marcinko, the contestant, should be left without any bequest or devise.

It may be helpful to state at the outset that during the trial in the superior court contestant stipulated that his brother John Marcinko was the only person charged by him to have exerted undue influence on the testator and that there was no suggestion that his father was mentally incompetent at the time he signed the purported will. Additionally, we note that the trial justice charged the jury that there was no contention of fraud and that therefore the jury was not to consider the question of fraud. No objection having been made to this portion of the charge, it became the law of the case.

After the parties rested, the proponents moved for a directed verdict on both issues. The trial justice reserved decision thereon under rule 50(b) of the rules of civil procedure of the superior court and submitted the case to the jury, which found that the instrument in question was not the last will and testament of Anicet Marcinko. The trial justice then denied proponents' motion for a directed verdict. See Renault v. John Hancock Mutual Life Ins. Co., 98 R.I. 213, 220, 200 A.2d 588, 591. Judgment was accordingly entered sustaining contestant's appeal and vacating the decree of the probate court.

The trial justice thereafter also denied proponents' motion for a new trial.

The cause is before us on proponents' appeal from the judgment entered in this action. The appeal challenges the correctness of the trial justice's orders denying their motions for a directed verdict and for a new trial, as well as certain rulings denying their requests for certain instructions.

Anicet Marcinko and his wife, Agnes, were born in Lithuania. They had two daughters, Anna L. D'Antuono and Eva Waskiel, and three sons, George, John and Joseph. At the time he executed his will, Anicet could neither read nor write although with some difficulty he was able to sign his name. Neither could he speak nor understand the English language with any degree of competency. After his retirement in 1952, Anicet and his sons engaged in a small business venture which involved the construction and remodeling of houses. In 1954, a deispute arose between Joseph and his brother John over the payment of a bill. The dispute subsequently involved Anicet and his wife and resulted in strained family relations. After this dispute, Joseph and John ceased speaking to each other.

From 1948 to 1955 Joseph and his family lived on the first floor of the home owned by his parents, his parents and his brother John occupying the second floor. In 1955 Joseph and his father discussed their business affairs. Anicet offered Joseph $500 to settle their affairs but Joseph refused the offer and he subsequently received notice to vacate the tenement he was occupying. He moved and never visited his parents at their home thereafter.

In 1956 Joseph brought an action against his father in the superior court for an accounting and other relief. It appears from the testimony in the instant case that sometime after Joseph brought the action against his father, his father and mother consulted an attorney and executed separate wills, both of which disinherited Joseph. After his mother's death in 1958, Joseph contested her will. Thereafter his father consulted the same attorney and executed the instrument involved in this appeal, in which he again failed to provide for Joseph. Sometime thereafter the father became sick and he died in 1961.

The purported will is witnessed by Benjamin C. Chester and his secretary Marie E. Stone. Insofar as pertinent here it contains the following provisions: His children John and Anna are the named executors; all his real estate is devised to his children John, Anna, Eva and George; the residue of the estate is to be divided equally among the same four children; additionally the will contains the following provisions:

'Ninth:-I intentionally omit making any provision for my son Joseph Marcinko or for the issue of my said son Joseph Marcinko whether presently born or born after the execution of this will, and whether or not my son Joseph Marcinko predeceases or survives me. I make this provision in view of the difficulty which my said son Joseph has caused myself and my wife, especially the litigation in which he has involved me.

'Tenth:-I direct that the Executors or Executor or Executrix, as the case may be, of my estate, engage Benjamin C. Chester as attorney to represent the said estate and the previous nomination of my Executors is conditioned upon the said Executors carrying out this said direction.'

We have outlined in a general way the events which resulted in the instant appeal. At the trial in the superior court the proponents and the contestant presented witnesses on their behalf whose pertinent testimony can be summarized as follows. The first witness presented by proponents was Benjamin C. Chester, the attorney who drafted the purported will. He testified that Anicet, upon the death of his wife, had asked him to make minor changes in his will executed on June 22, 1956; that he did so in accordance with Anicet's instructions to disinherit Joseph because his son had brought a law suit against him and had refused to pay him rent in 1956; that the will was written in English but translated by him, one paragraph at a time, into Lithuanian for the benefit of Anicet who, as we have mentioned previously, had difficulty understanding English; that the will was witnessed by Marie E. Stone, his legal secretary, and by himself; that Anicet signed in the presence of both witnesses and the witnesses signed in the presence of each other and in the presence of Anicet at his request; and that Anicet was over twenty-one and was of sound mind.

Marie E. Stone corroborated Mr. Chester's testimony with respect to the formal execution of the instrument and added that Anicet did not read the instrument in her presence.

Joseph, as well as his wife Helen, testified in opposition to the purported will and in support of his contention that it was not the last will and testament of his father. Joseph stated that John constantly argued with his parents; that John had threatened him; and that John had been responsible for his eviction in 1955. Joseph added that shortly before his father's death, he received a call from his sister, notifying him that his father was in the hospital and wished to see him; that he went to the hospital with his wife; that his father began to cry when he saw him and described him as his best son; and that his father said:

'* * * that Johnny made the papers and all the children are going to get an equal share. * * * And hurry up with the other case, and as long as I'm still alive, I'll still help you.'

Helen corroborated her husband's testimony and added that her mother-in-law had told her that John constantly hollered and carried on in their home and that neither she nor her husband could stand it.

In rebuttal the proponents presented the testimony of Eva Waskiel and Anna L. D'Antuono. Eva testified that her parents got along very well with her two brothers George and John but not that well with Joseph. Anna corroborated this testimony as to her parents' relationship with George and John but had no opinion as to their relationship with Joseph.

We note that neither John nor George were called as witnesses.

I. The Motion for a Directed Verdict

The proponents have briefed and argued their objection to the denial of their motion for a directed verdict sustaining the will ¹ under two grounds which we shall consider, for convenience, in the order raised.

A. Knowledge of Contents

The proponents contend that there was no evidence from which a jury might reasonably have found that at the time Anicet signed the purported will on October 11, 1958, he did not know what it contained and did not intend to disinherit his son Joseph. On the contrary, the contestant, Joseph, argues that the evidence is such that reasonable minds could differ on this question, and since reasonable inferences could have been drawn either way from such evidence the issue was properly left to the jury. We agree with contestant's view.

In considering proponents' instant objection we are not concerned with any claim that Anicet Marcinko was of unsound mind when he signed the purported will or that it was not executed in...