De Marco v. D'Errico
| Decision Date | 19 February 1958 |
| Docket Number | No. 9675,9675 |
| Citation | 87 R.I. 117,138 A.2d 830 |
| Parties | Lorenzo DE MARCO et al. v. John F. D'ERRICO, Ex'r. Ex. |
| Court | Rhode Island Supreme Court |
John DiLibero, Providence, for appellants.
Ralph Rotondo, Luigi Capasso, Providence, for appellee.
This is an appeal from a decree of the probate court of the city of Providence admitting to probate the purported last will and codicil thereto of Maria DeMarco, late of said city. In the superior court the case was tried to a jury which returned a verdict sustaining the will and codicil. The case is here on the appellants' bill of exceptions which contains forty-one exceptions. However, they are relying only upon the first five which are to rulings on evidence and the last exception which is to the denial of their motion for a new trial.
The executor called as his first witness the clerk of the probate court who was asked what action was taken in that court. Over the objection of appellants he was permitted to answer that the will was allowed for probate. The trial justice stated at the time of the objection that he would take care of that problem in his charge, and he did so when he instructed the jury that 'whatever happened there has no bearing here * * *.' Had the appellants wished to have the trial justice caution the jury at the time they took their exception he doubtless would have done so. Furthermore, the appellants' reasons of appeal state this very fact, and since the pleadings go to the jury the jury would have known what happened in the probate court. In any event if the ruling excepted to was technically erroneous it was cured by the charge. This exception is overruled.
There is nothing in appellants' brief about exception 2 and nothing was said about it in the argument. Therefore it is deemed to be waived. The other exceptions which have been neither briefed nor argued are deemed to be waived.
The appellants' exception 3 is to the court's allowing the purported will to be marked as an exhibit after an attesting witness had testified as to its formal execution and had expressed her opinion, without objection, that the testatrix was of sound mind. The appellants argue here that the attesting witness should have been required to state the facts upon which she based her opinion, but as there was no objection to the question that argument is not open to them. The procedure followed was in accordance with Rule 31 b. of the Rules of Practice of the Superior Court which reads as follows: 'On appeals from probate of a will, the proponent shall be required, in putting in his case, only to submit the formal evidence of execution and capacity.' This exception is overruled.
The appellants' exceptions 4 and 5 are to the refusal of the trial...
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Russian v. Lipet
...failure to object to the questions about which she now complains precludes her from urging these objections on review. DeMarco v. D'Errico, 87 R.I. 117, 138 A.2d 830; Di Biase v. Nardolillo, 76 R.I. 143, 68 A.2d 89. In that one instance, she now assigns error to the refusal of the trial jus......
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...codicil constituted a republication of the will, citing Merrill v. Boal, 47 R.I. 274, 132 A. 721, 45 A.L.R. 830, and DeMarco v. D'Errico. 87 R.I. 117, 138 A.2d 830. We are reminded that the second codicil was executed after LeRoy's marriage to Dorothy Gardiner Fales, so that with republicat......
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State v. Poole
...which has already been admitted without objection by coupling such testimony with later objectionable testimony. See DeMarco v. D'Errico, 87 R.I. 117, 138 A.2d 830. Under his exception to the denial of his motion for a directed verdict defendant contends that the evidence is uncontradicted ......