R.I. Hosp. Trust Co. v. Sherman
| Decision Date | 11 April 1932 |
| Docket Number | No. 6968.,6968. |
| Citation | 159 A. 740 |
| Parties | RHODE ISLAND HOSPITAL TRUST CO. v. SHERMAN. |
| Court | Rhode Island Supreme Court |
Exceptions from Superior Court, Providence and Bristol Counties; Antonio A. Capotosto, Judge.
Action in assumpsit by the Rhode Island Hospital Trust Company, administrator with the will annexed of Adin R. Sherman, against Arthur A. Sherman. To the direction of the verdict for plaintiff and to the refusal to direct the verdict for defendant, defendant excepted.
Exceptions sustained, with permission to plaintiff to show cause why case should not be remitted with directions to enter judgment for defendant.
Tillinghast & Collins, Harold E. Staples, and Horace L. Weller, all of Providence, for plaintiff.
Henry M. Boss, Jr., and Boss & McMahon, all of Providence, for defendant.
This is an action in assumpsit with common counts brought by plaintiff, administrator with the will annexed of Adin R. Sherman, to recover what are claimed to be certain assets of said estate given to defendant by his mother, Ella F. Sherman, widow of said Adin and executrix and residuary legatee under his will. The trial was by jury, and a verdict by direction of the court was returned for the plaintiff.
The case is in this court on defendant's bill of exceptions. The substantial exceptions are to the direction of the verdict for the plaintiff and to the refusal to direct a verdict for the defendant.
Adin R. Sherman, a farmer, resident in the town of Glocester, died January 26, 1924. His will was probated April 24, 1924. The testator made three bequests of $50 each to his daughter Isabel and his sons Arthur and Charles. The residue of his estate, both real and personal property, was devised and bequeathed to testator's wife, Ella F. Sherman, subject to the payment of debts and legacies. The testator's debts, which were few and small, were paid promptly by the executrix. No claims ever were filed against the estate.
After the probate of the will Mrs. Sherman gave her son Arthur six bank books of the estate and written orders to the banks for the transfer of these accounts to Arthur, and told him she was giving them to him while she was still living so that she would know that he got them. The amount of these gifts was $16,458.80.
The executrix filed a bond for $5,000 in the probate court April 26, 1924, and in September of the same year filed an inventory of the estate. After the death of her husband Mrs. Sherman lived with Arthur for a year; she then went to board in another part of the town, where she lived until her death.
In August, 1925, Mrs. Sherman was 65 years of age and in poor health. At her request and on her petition, Mr. Place, a family friend, was appointed by the probate court conservator of her estate. May 15, 1926, on the petition of the conservator, and because of her incapacity, Mrs. Sherman was removed as executrix and the Rhode Island Hospital Trust Company was appointed administrator d. b. n. c. t. a. of the estate of Adin R. Sherman.
Mrs. Sherman died February 1, 1927. A petition for the probate of her will was filed February 12, 1927, and after many continuances the will was admitted to probate May 12, 1928. As the executor nominated in her will refused to serve, the Rhode Island Hospital Trust Company, June 9, 1928, was appointed administrator d. b. n. c. t. a. of her estate.
Mrs. Sherman's daughter Isabel has appealed from the decree admitting the will to probate, and this appeal is still pending. This action by the plaintiff was not begun until March 12, 1930.
Probate proceedings in this state are statutory. Unless otherwise provided, the town councils are probate courts. By vote of the town a probate judge may be elected to act as a probate court for the town; such a judge is not required to be a member of the bar.
As often happens, persons who are not familiar with probate proceedings, either because of their relation to the interested parties or of their knowledge of the estate, are the most suitable appointees as executors or administrators. As was stated by this court in Duffy v. McHale, 35 R. I. 16, 85 A. 36, it is the policy of the courts to sustain the acts of such executors and administrators if done in good faith and without injury to the estate, even though the procedure may have been irregular.
The executrix having been removed and the estate not having been fully administered, the administration of the plaintiff is "deemed to be a continuation of the preceding administration." Gen. Laws 1923, c. 369, § 9.
In May, 1926, when plaintiff qualified as administrator, the estate of Adin R. Sherman was practically settled. Nothing remained to be done to complete...
To continue reading
Request your trial