McSoley v. McSoley, 9603

• Decision Date: 25 May 1960
• Docket Number: No. 9603,9603
• Citation: 161 A.2d 216,91 R.I. 61
• Parties: William H. McSOLEY, Jr. et al. v. Alice M. McSOLEY et al. Ex.
• Court: Rhode Island Supreme Court

Page 216

161 A.2d 216

91 R.I. 61

William H. McSOLEY, Jr. et al. v. Alice M. McSOLEY et al.

Ex. No. 9603.

Supreme Court of Rhode Island.

May 25, 1960.

William H. McSoley, Jr., Edmund Wexler, Providence, for proponents.

William S. Flynn, Christopher J. Brennan, Providence, for contestants.

PAOLINO, Justice.

This is an appeal from a decree of the probate court of the town of Warren denying a petition to admit to probate two written instruments purporting to be the last will and testament of William H. McSoley, who died on September 27, 1948. The instruments comprise a will dated July 9, 1947 and a codicil thereto dated June 30, 1948. After a trial in the superior court, the jury returned a general verdict for the proponents and made special findings sustaining both instruments.

The case is before us on the contestants' exceptions to certain evidentiary rulings and to the denial of their motion for a new trial. It is also here on proponents' single exception to a ruling of a justice of the superior court denying their motion to strike from the record the entry of appearance of Alice M. McSoley in her capacity as administratrix. The proponents also filed a motion in this court to strike her appearance and to dismiss the bill of exceptions as to her in such capacity.

William H. McSoley, the decedent, was admitted to the practice of law in this state in 1903. He was first married in 1906 but in 1912 his wife died. Two children were born of that marriage, Catherine E. McSoley, now Catherine E. Beagan, and William H. McSoley, Jr. Thereafter in 1914 decedent married Alice M. Sullivan, who bore him six children, five of whom survived him. At the time of the second marriage, Catherine E. and William H., Jr. were aged six years and four years respectively, and lived with the father and his second wife for about three years. Thereafter decedent placed the two children with their paternal aunts and they never returned to live at his home.

The decedent became a prominent and successful lawyer and maintained an office in Providence and an evening office in his home in Warren. About twenty years before his death he purchased a home at 21 Miller street in that town, where he resided with his wife and the children of the second marriage. It is admitted that he was a good provider for his wife and children. They all shared in his love and benefited from the results of his worldly success.

It appears from the evidence that decedent gave all his children generous educational opportunities. Catherine attended private schools and graduated from college. William H., Jr., hereinafter called William, graduated from college and law school, and after his admission to the bar became associated with his father until the latter's death with the exception of the period of his service in the navy during World War II. The decedent took great interest in the affairs of all his children. Their accomplishments afforded him great pleasure and pride and the failure of some of them to attain what he had hoped for caused him disappointment. It is undisputed that he visited the children of his first marriage very often, especially on Sundays and holidays, and that he was otherwise completely devoted to their welfare until his death.

The decedent enjoyed good health up to 1945. In that year he began to suffer from sudden and severe abdominal pain. He sought medical care and in February 1945 after a sudden attack of pelvic pain he entered St. Joseph's Hospital in Providence. The diagnosis indicated symptoms of acute urinary disorder. He had attacks of pain in January and February and again in April. In May of the same year, because of another attack of pain, he entered the Homeopathic Hospital in Providence. The diagnoses among others at this time were arteriosclerosis, myocarditis, chronic duodenal ulcer and diverticulum descending colon.

His condition did not improve and on September 10, 1945 he went to the Lahey Clinic in Boston for examination and advice. As a result thereof he entered the New England Baptist Hospital on October 17, 1945 where surgery was performed by a Dr. Cattell of the Lahey Clinic resulting in a gall bladder operation and the removal of several stones and diverticulae. During his convalescene he had fever, disorientation and mental confusion. He was discharged from the hospital on November 7, 1945 at which time his mental confusion still persisted. However, he reported to the Lahey Clinic on December 21, 1945 for a postoperative checkup and Dr. Cattell noted on the clinic's records that decedent was very well, wished to return to work and was mentally clear. On his return from the hospital in November 1945 he was attended by his family physician Dr. Ralph J. Petrucci of Warren, to whose testimony we shall hereinafter refer.

In August 1947 he went to the Lahey Clinic for another examination. He complained that for two years he had experienced lapses of memory, spells of mental confusion, the sensation of falling forward, a stumbling gait at times, urinary frequency and nocturia. He visited the Lahey Clinic again on September 2 and October 30, 1947. On December 3, 1947, after another examination at the clinic, the doctors concluded he had Paget's disease and marked arteriosclerosis as well as a condition which required an operation.

On January 4, 1948 he entered the New England Baptist Hospital. The doctors concluded that his lapses of memory, occasional stumbling gait and spells of mental confusion were due to cerebral arteriosclerosis. An operation was performed by Dr. Earl E. Ewert and his convalescence was characterized by mental confusion and disorientation. The hospital record shows that there were times when he was cooperative, but that upon his discharge on January 20, 1948 he was still mentally confused. However, after a checkup on March 2, 1948 Dr. Ewert noted that decedent was mentally clear.

On January 22, 1948 he returned to his office and worked there daily until September 9, 1948 when he left it for the last time. On September 13 he entered St. Joseph's Hospital where he died on September 27, 1948. The diagnosis on admission was acute urinary detention and the final diagnosis was cerebral thrombosis. At the time of his admission his gait was unsteady, his appetite poor and he was confused as to time and place.

It appears from the evidence that the will and codicil in question were personally drafted by defendant and typed by his secretary Grace B. Conway in his Providence law office. The attesting witnesses, who were the same on both instruments, proved that the instruments were executed with all the formalities required by statute. Both witnesses were fellow attorneys who had been friends of the decedent for many years. At the time the instruments were executed the only persons present were decedent, Miss Conway, and the two attesting witnesses. The witnesses and Miss Conway testified that in their opinion he was of sound mind and knew what he was doing on the dates when he signed the will and codicil.

In the will he named his son William executor and his daughter Catherine executrix if his son was unable to act, and requested that no surety be required on their bonds. He bequeathed $1,000 to each of his four sisters, a brother-in-law, a nephew and his granddaughter, and $500 each to two named charities. He gave his son William his law books and office furniture. He left the household furniture and furnishings of his house in Warren to his wife Alice M. McSoley. To his five children by the second marriage he gave each, by name, $2,500, and to his wife $40,000 and the sum of $2,600 in lieu of the six and twelve months' widow's allowance usually granted by the probate court. To his secretary Grace B. Conway he bequeathed $1,500 if she was in his employ at the time of his decease. He bequeathed the sum of $60,000 to his daughter Catherine and his son William to be divided between them, with the provision that if either should die in his lifetime the bequest was to be paid to the survivor of them. The residue of his estate he bequeathed to Catherine and William as joint tenants and to the survivor of them forever.

In other provisions of his will decedent gave advice to his named executor and executrix to consult with Oscar E. Skinner, Jr. about the stocks and bonds owned by him and directed that Miss Conway's services be retained for a year at the same salary. He authorized his executor to sell all his personal property and advised him to keep an accurate record of moneys received and disbursements made.

In the codicil decedent reduced the specific bequest to his wife from $40,000 to $25,000. He also increased the specific bequests to Catherine and William from $60,000 to be divided between them to $60,000 each, providing that if either died in his lifetime the bequest would go to the survivor of them. In making such changes he referred to the will and confirmed it in all other respects.

It appears from the evidence that in his lifetime, through the practice of law and his investments, decedent had accumulated an estate of over $200,000 and he also owned the house in Warren, which, exclusive of furnishings, he valued at $20,000 to $25,000. In July 1946, for the purpose of minimizing his estate taxes, he conveyed the Warren house to his wife. In June 1946 he purchased for $9,000 a house in Cranston for Catherine and William. In July 1947 upon the marriage of William he gave him a wedding present of $7,000 and in June 1948 he gave him $1,000 to paint and repair his home. It also is in evidence that after the marriage of his daughter Catherine he contributed substantially to her support and that of her minor daughter. From certain insurance policies his wife received $6,000 and Catherine and William received $9,000 between them.

We have discussed in some detail the family and medical background of decedent because the controversy which has arisen as a result of his will and codicil is...