Merrill v. Boal

• Decision Date: 01 April 1926
• Docket Number: Nos. 6127, 6128.,s. 6127, 6128.
• Parties: MERRILL v. BOAL et al. BUGNON v. SAME.
• Court: Rhode Island Supreme Court

132 A. 721

MERRILL

v. BOAL et al.

BUGNON

v. SAME.

Nos. 6127, 6128.

Supreme Court of Rhode Island.

April 1, 1926.

On Motion for Reargument, April 23, 1926.

Sweeney and Stearns, JJ., dissenting.

Exceptions from Superior Court, Newport County; Hugh B. Baker, Judge.

Petitions by Annetta S. Merrill and Amelie Bugnon against Theodore D. Boal and others to have a certain instrument admitted to probate as part of will of Theodore M. Davis, deceased. Petitions were denied, and, on appeal, the cases were tried together by a justice of the superior court, who dismissed the appeal. On appellants' exception to dismissal of the appeal and on appellees' exception to certain rulings and findings. Appellees' exceptions overruled, and appellants' exceptions sustained.

Tillinghast & Collins, William R. Tillinghast, and James C. Collins, all of Providence, for R. I. Hospital Trust Co.

Edward M. Burke, of Westerly, and Dudley Phelps, of New York City, for Annetta S. Merrill.

Eugene A. Kingman, Elmer E. Tufts, Jr., and Edwards & Angell, all of Providence, for Metropolitan Museum of Art of New York City.

Garnder, Moss & Haslam and William W. Moss, all of Providence, for Amelie Bugnon and others.

Herbert A. Rice, of Providence, for certain appellants.

Sheffield & Harvey and William R. Harvey, all of Newport, William E. Carnochan, of New York City, and Lyman K. Clark, of Boston, Mass., for appellees.

RATHBUN, J. The above-entitled cases were tried together by a justice of the superior court, sitting without a jury. The cases were before said court on appeal from a decree of the probate cort of the city of Newport, denying the petitions filed by said Merrill and Bugnon, respectively, to have a certain written instrument in the form of a trust deed from Theodore M. Davis, late of said Newport, deceased, to the Rhode Island Hospital Trust Company, admitted to probate as a part of his will, in so far as said instrument affected the disposition of his property after his death. Each case is before us on the appellant's exception to the decision of said justice dismissing the appeal and also on the exception of appellees— although said decision was in their favor—to certain rulings and a finding of said justice.

It appears that in the summer of 1911 said Davis arranged with the Rhode Island Hospital Trust Company for the latter to manage a portion of his property under a trust agreement which was afterwards reduced to writing by the attorney for the trust company. The written agreement, which is the instrument in question, conferred upon the trust company, as trustee, broad powers for the management and control of such securities and property as he should deliver to the trustee, and, pursuant to the agreement, he delivered to the trust company property of considerable value, to be held, managed, and finally disposed of in accordance with the terms of the trust agreement. The trust instrument provided that the trustee should pay the income from the trust property to Mr. Davis during his lifetime, and, upon his decease, after making certain specified payments and providing for certain annuities for persons named, pay the net income in equal shares to Mr. Davis' wife and another person during their joint lives. The instrument further provides that, after the decease of the survivor, the trustee shall divide the remainder of the trust estate into as many equal parts as may be necessary, and transfer, pay over, and convey varying specified numbers of said parts to persons named, if respectively living, at Mr. Davis' decease. Mr. Davis' signature to said instrument was witnessed by two witnesses, and the appellants contend that the instrument was executed, not only with all the formality required by law for executing a will, but also with the intention that said instrument should operate in connection with an instrument, hereinafter referred to as the will, to dispose of property which he should leave at his death. The attorney who prepared the trust instrument also drew for Mr. Davis, at the same time, another instrument, bearing the same date, in the form of a will. Said will and trust instrument together purported to dispose of the property, which Mr. Davis should leave at his death, substantially in accordance with a will which was in existence at the time the will and trust instrument in question were being prepared. If resort cannot be had to the trust instrument to ascertain the persons and the shares which they are to take, the whole of the residuary property must pass as intestate estate.

The appellants contend that these two instruments together constitute Mr. Davis' will. It was his intention that both instruments should be executed at the same time, but the trust instrument, although in existence bearing his signature when the will was executed, was not witnessed until August 16, 1911, two days after the execution of the will. However, Mr. Davis later added a codicil to the will, and the execution of the codicil, of course, amounted to a republication of the will. See In the Goods of Truro, 14 Wkly. Rep. 976, 14 Law T. (N. S.) 893. By the ninth clause of the will Mr. Davis referred to the trust instrument by referring to the trust, the terms of which were contained in said instrument. By said clause he gave the residue of his property to the executors or administrators of his estate in trust to reduce to cash as soon as reasonably possible, and to pay the net proceeds—

"to the said Rhode Island Hospital Trust Company to be held, managed and disposed of as a part of the principal of the estate and property held by it in trust for my life and the lives of others in the same manner as though the proceeds of such sales had been deposited by me as a part of said trust estate and property."

Mr. Davis deceased February 23, 1915, and thereafter the will and codicil alone were presented and duly admitted to probate by said probate court. When said petitions were filed, the time within which an appeal could have been taken from the decree admitting the will and codicil to probate had elapsed.

It is elementary that a will may be comprised of two or more separate documents. Assuming for the time being that the trust instrument might properly have been admitted to probate with the will and codicil, the question arises whether said court now has jurisdiction to probate another instrument, not in the place of the will, but as a supplemental part of the will itself.

In Bowen v. Johnson, 5 R. I. 112, 73 Am. Dec. 49, in an opinion by Ames, C. J., this court held, in accordance with the generally accepted rule, that the power of our probate courts to revoke a probate once granted by them, although not expressly recognized by statute, is a "just and necessary power to be implied from their general power to 'take the probate of wills, and grant administration on the estates of deceased persons.'" If without express statutory authority—and none existed when Bowen v. Johnson was decided—probate courts have jurisdiction to revoke the probate of a will, after the time for taking an appeal has passed, and probate in its place a later will, a fortiori said courts have the power at any time after probating a will and before the estate is settled to admit to probate a supplemental instrument which should have been probated with and as a part of the will. This conclusion is amply supported by the authorities. Newton v. Seaman's Friend Soc, 130 Mass. 91, 39 Am. Rep. 433; Schultz v. Schultz, 10 Gratt. (51 Va.) 358, 60 Am. Dec. 335; Clark v. Wright, 3 Pick. (Mass.) 67; Waters v. Stickney, 12 Allen (Mass.) 1, 90 Am. Dec. 122, end cases cited.

Was the instrument executed with the formalities required by the statute of wills in force in Rhode Island? The justice of the superior court who heard the petitions on appeal found that:

"On all the facts * * * and on the law * * * the trust deed, so called, was executed with all the formalities required in this state for the execution of a testamentary instrument."

By stipulation of the parties, a transcript of the oral evidence produced in the probate court was treated by said justice as evidence before him for his consideration. As said justice did not see and hear the witnesses testify, he was in no more favorable position than is this court in passing upon the credibility of witnesses and weighing the evidence before him. We have therefore carefully read the transcript and examined the exhibits which were before said justice, and conclude, in substance, as did said justice, that Mr. Davis acknowledged his signature to the instrument in question in the presence of two witnesses, who were present at the same time, and who thereafter at his request, in his presence, and in the presence of each other, witnessed his said signature. The testimony of the witnesses who testified that said signature was acknowledged and witnessed as above stated was clear and uncontradicted, and it was a question of law whether said signature was witnessed as required by the statute regulating the execution of wills.

Mr. Davis' signature was witnessed by one person who wrote his name to the left of that of Mr. Davis and under the words "in presence of." The second witness, instead of signing as did the first, wrote the ordinary acknowledgment clause, signed his name, affixed his official seal, and wrote beneath his signature the words "Notary Public." It appears that the acknowledgment of Mr. Davis was taken with his consent but not at his request. His request of the second witness was the same as that of the first. The appellees contend that the second witness, because of his taking the acknowledgment and signing as notary public, did not attest and subscribe the will as required by section 4303, G. L. 1923.

Said section 4303 provides that "no form of attestation shall be necessary." Was the second person signing any less a witness because he did more than was required by statute? What he did was to sign his name with...