Old Colony Trust Co. v. Cola

• Decision Date: 23 May 1919
• Citation: 233 Mass. 119,123 N.E. 454
• Parties: OLD COLONY TRUST CO. v. DI COLA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

233 Mass. 119

123 N.E. 454

OLD COLONY TRUST CO.

v.DI COLA.

Supreme Judicial Court of Massachusetts, Norfolk.

May 23, 1919.

Exceptions from Superior Court, Norfolk County; Franklin T. Hammond, Judge.

Proceeding for probate of the will of Gaspare Di Cola by the Old Colony Trust Company, executor, contested by Antonietta Di Cola. From a decree allowing the will, contestant appealed to the Supreme Judicial Court, which framed issues for trial by a jury in the superior court. There was a verdict for the will, and contestant excepts. Exceptions overruled.

This is an appeal from the decree of the probate court for the county of Norfolk allowing the will of Gaspare Di Cola, late of Brookline, in said county, and a trial was had before a jury in this court, lasting from February 13 to March 2, 1918, of the following issues framed by the Supreme Judicial Court:

First Issue. Was the instrument now propounded for probate as the last will of Gaspare Di Cola duly executed accorded to law? To which the jury answered ‘Yes.’

Second Issue. Was Gaspare Di Cola of sound and disposing mind and memory at the time of the execution of the instrument which is now propounded for probate as his last will? To which the jury answered ‘Yes.’

Third Issue. Was the instrument propounded for probate as the last will of said Gaspare Di Cola procured to be made by the fraud or undue influence of Antonio G. Tomasello, Joseph A. Tomasello, Antonino Marchetti, Wayland F. Dorothy, and the person described in the will as the wife, Antonina Di Cola (otherwise known as Antonina Bova) or any of them? To which the jury answered ‘No.’

The proponent introduced the testimony of the three subscribing witnesses to the will, who were fellow countrymen and friends of many years standing of the testator, and at the close of their testimony offered the alleged will and rested.

(1) Antonio Tomasello, one of the subscribing witnesses, testified on direct examination:

That, on the night of the testator's death, the woman known as Mrs. Di Cola said she was worried because the lawyer did not come. She said, ‘My God, why he don't come; he might die.’ Then I said, ‘Signora, what you worry about?’ ‘Don't you care if he die without a will, because she referred to why the notary didn't come to make the will.’ ‘Why he delay to come?’ I said, ‘Don't you care because if Di Cola die without a will I think it is better for you because by the law you going to get one-third what he got. If he make a will of course I don't know he leave you that much.’ She said, ‘You don't know, I will be left in the middle of the street.’

Q. Now, you said that you didn't know that they were not married to each other? A. I didn't know.

Q. How did you happen to say to Mrs. Di Cola if he dies without a will you will get one-third? A. Because I hear the Massachusetts law will give the wife one-third interest if a man die without a will, and knowing at that time she was his wife it naturally come to me to advise her as the law of Massachusetts would be, what I heard.

On cross-examination, the same witness testified:

Q. You did tell her, ‘Why do you worry, why do you care; if he dies without a will you will be better off?’ A. I did because she was crying on account of the delay of this lawyer who was to come in to make a will. I said, ‘Don't you care whether he make a will or not. You will be taken care of anyway.’

Q. And it was then she clasped her head and said, ‘You don't know?’ A. ‘You don't know, I will be left in the strada, on the street.’

Q. Did she say anything as to when it was that Mr. Di Cola had said anything about sending for a notary or making his will? A. She don't say nothing to me.

Q. During the time that you were in the room with Mr. Di Cola, did you have any talk yourself personally with Mr. Di Cola? A. Well, a little. I don't think I talked more than one or two words.

The same witness also testified on cross-examination, on being asked if he knew of any quarrels between Di Cola and his wife, so called:

A. After they moved to Brookline, after Mr. Di Cola had some business in New York also, and at the time when the fruit time, lemon time arrived he went to New York several times, and she was a crying in my son's house and saying that she was left all alone, she want to move some place else, and mentioned one of my houses, and he said, ‘No, you stay there and I pay for the company you want, but I don't want a bastard in my house.’ That is the word Mr. Di Cola used that time, ‘I pay for a maid or anybody that you want, but I don't want the bastard in my house.’ We don't know what they meant. They quieted down so they went peaceful.

The same witness on cross-examination further testified:

That two days after the death of the testator at the house on the day of the funeral, Mrs. Di Cola laid her hand on the witness' arm and said, ‘I want to tell you, you might think I bad woman, now you know I was not his wife.’ And then she began to give me the story about how she got to be intimate with this Mr. Di Cola. You want me to give all that story what I can remember?

Q. I will ask you to state that.

The court excluded the testimony and the appellant duly excepted to said exclusion. It appeared that the intimacy between the testator and the woman who called herself his wife began in the town in Sicily where they both lived more than 25 years ago.

(2) The appellant called and offered to show by one Antonino Bova, the son of the woman known as Mrs. Di Cola, the circumstances of the aunt with whom she left the witness in Italy. The court excluded the testimony because it was among other reasons too remote (occurring over 24 years ago) and the appellant duly excepted.

(3) The same witness was asked by the appellant to state the substance of quarrelsome conversations between the testator and the witness' said mother which occurred, he would have testified, about 20 years or so ago. The court excluded the testimony because, among other reasons, it was too remote and the appellant duly excepted.

(4) The same witness was asked by the appellant:

Just before you left [for Baltimore] did you hear any talk with Di Cola about your leaving? A. I heard a little discussion in the house.

Q. What was said?

Upon it being stated that this also was 20 years or so ago, the court excluded the question because, among other reasons, it was too remote and the appellant duly excepted.

(5) The said witness was asked:

How long did you live at the house [of the testator] the second time? A. The second time about three months.

Q. And during that time did you hear any quarrels between your mother and Mr. Di Cola?

The court excluded that question because, among other reasons, it was too remote and the appellant duly excepted, the time referred to being about 13 years before the time of the trial, the appellant offering to show that Mrs. Di Cola wanted the witness to live in the house and the testator wouldn't have him there and so she sent him away.

(6) The same witness, in answer to the question: ‘Do you remember the talk which was had just before you went to Baltimore again?’ Which talk occurred about the same time, namely, 13 years ago, answered: ‘Yes, I just remember a little bit of a row.’ The appellant offered to show by this witness that his mother wanted him to live in the house, but, because the testator would not allow it, she sent him to Baltimore. The court excluded this testimony because, among other reasons, it was too remote and the appellant duly excepted.

(7) The same witness was asked:

Did you talk with your mother before you were married? A. Yes, sir. Q. What was that talk?

The court excluded the question as too remote, among other reasons, being at least 12 years before the execution of the will, and the appellant duly excepted, offering to show that the witness' mother, the person described in the alleged will as ‘the wife, Antonina Di Cola,’ said, at that time, since she couldn't keep him in the house because of Di Cola's actions, and having been obliged to send him away twice since he was in Boston, and since he was living with that washlady where she could have no direct control over him, she wanted him to marry so that he might have a woman who would keep him in the home. The mother picked out this woman whom he did marry and married him off to her, the mother spending some $800 on it, the mother stating to him that she would like to do more but Di Cola objected to it. She had about $2,000 in the bank in her name, and from that she had got $800 that came from her money and not Di Cola's, and Di Cola did not know anything of that. The result of that conversation was he got married to this girl, whom the mother had picked out for him. The mother told him, when she objected to having him sent back to Baltimore, Di Cola became very angry and absolutely refused to have him in the house.

(8) The appellant offered to show by the same witness that he went to the office of George F. Moulton, Esq., from six to eight times in 1913 or 1914, and told Mr. Moulton of the illicit relationship existing between the testator and the mother of the witness, and that they must get married; that Mr. Moulton, in accordance with his instructions, sent for Mr. Di Cola and the mother of the witness and told them, not in the presence or hearing of this witness, what the witness had told him, and that as a result of the witness' efforts the divorce proceedings were started, being originated, not by the witness' mother, but by himself, and that, shortly before the testator was shot, the witness was informed that the testator and the witness' mother were to be married, and the witness then ceased further prosecution. The court excluded this evidence and the appellant duly excepted.

(9) Dr. Albert Ehrenfried, called as a witness by the appellant, testified in substance that he had been practicing since 1905, having received his medical education at Harvard Medical School and the Boston City Hospital; that h...