R.I. Hosp. Trust Co. v. Sherman

• Decision Date: 26 June 1936
• Docket Number: No. 7540.,7540.
• Parties: RHODE ISLAND HOSPITAL TRUST CO. v. SHERMAN.
• Court: Rhode Island Supreme Court

185 A. 601

RHODE ISLAND HOSPITAL TRUST CO.

v. SHERMAN.

No. 7540.

Supreme Court of Rhode Island.

June 26, 1936.

Exceptions from Superior Court, Providence and Bristol Counties; Herbert L. Carpenter, Judge.

Action by the Rhode Island Hospital Trust Company, as administrator c. t. a. of the estate of Ella F. Sherman, deceased, against Arthur A. Sherman. Verdict for plaintiff, and both parties bring exceptions.

Defendant's exceptions overruled; plaintiff's exception sustained and case remitted, with directions.

Tillinghast & Collins, Harold E. Staples, and Robert W. Hankins, all of Providence, for plaintiff.

Henry M. Boss, Jr., of Providence, for defendant.

MOSS, Justice.

This is an action of assumpsit, brought by the plaintiff, as administrator c. t. a. of the estate of Ella F. Sherman, to recover from the defendant, a son of the testatrix, certain funds, held by him or under his control, which had belonged to her and which he claims were given to him by her in her life-time. The plaintiff claims that she was both physically sick and weak and mentally weak and incompetent at the time of the alleged gifts and that he obtained the funds from her by means of undue influence, with the intent of defrauding her.

The action was tried before a justice of the superior court and a jury. At the end of the trial the jury returned a special finding to the effect that he had thus obtained the funds and a general verdict for the plaintiff for $26,296.73, which was composed of $17,431.55 principal and the interest thereon to the date of the verdict. As the damages laid in the writ were only $25,000, the plaintiff filed a motion for leave to increase the ad damnum to $30,000. This motion was denied by the trial justice, solely on the ground that he had no power to grant it, and he also denied a motion for a new trial, which the defendant had filed on the grounds that the verdict was contrary to the law; "that it and the above special finding were contrary to the evidence and the weight thereof; and that the amount of the verdict was in excess of the ad damnum."

The case is now before this court on bills of exceptions filed by the respective parties, that of the plaintiff stating only its exception to the denial of its abovementioned motion, while that of the defendant sets forth exceptions to the denial of his motion for the direction of a verdict in his favor, to the denial of his motion for a new trial, to the denial of certain requests by him for special instructions to the jury, to certain portions of the charge as given, and seventy-eight other exceptions, nearly all of them being to rulings as to the admission of evidence. Many of the defendant's exceptions have not been pressed in this court.

With the exception of a savings bank deposit of $817, which belonged to the testatrix and constituted savings by her, all the funds in dispute were derived from bank deposits, a Liberty bond for $500, a promissory note in the face amount of $540.14, and some real estate sold, all of which personal and real estate had belonged to her husband, Adin R. Sherman, and which were bequeathed and devised to her by his will. In this she was named as executrix and it was duly probated and she was qualified as executrix, a short time after his death and a few months before she made the alleged gifts to the defendant. The real estate was sold by her and the proceeds of its sale were deposited to her credit in a bank. The note was collected in full and the sum paid on it was deposited by the defendant to his credit in a bank.

Before the making of any of the alleged gifts, she as executrix had paid all her husband's debts and funeral expenses, all testamentary gifts to others than herself, and all other charges against the estate except some small amounts for probate fees and taxes; but no inventory was filed until after the making of the gifts to the defendant. About ten days after her husband's death she went to live with the defendant and his family, where she remained, except for a few very short visits to her daughter, until about a year after the last of the gifts, when she went to live as a lodger and boarder at the home of a Mrs. Saunders, an old friend of hers. Until her death from arteriosclerosis, about a year and nine months later, she continued to live there.

During this last period she was quite feeble, physically and mentally, and constantly growing worse. About four months after its beginning, on a petition filed by her, a neighbor and old friend of hers was appointed conservator of her property and estate and took charge of her affairs. In her petition she described herself as a person who, by reason of advanced age and mental weakness, had become incapacitated to properly care for her property. According to his testimony in this case, she asked him to obtain from the defendant her bank books and some articles of personal property, all of which accounts and articles the defendant claimed as gifts from her, but which she denied having knowingly given him. She was unable to give the conservator any considerable information as to the bank accounts and it was only by resorting to legal proceedings against the defendant in the probate court and inquiries made of different banks that he was able to find out what they were. Before anything had been obtained from the defendant except a few articles of small value, the probate court removed the testatrix as executrix of her husband's will, on account of her incapacity to act as such, and appointed the Rhode Island Hospital Trust Company as administrator d. b. n. c. t. a. of his estate, the administration of which had not been formally closed, and it qualified as such administrator.

A little later the testatrix died, leaving a will duly admitted to probate by the probate court by a decree from which an appeal was taken and apparently is still pending in the superior court. The person named in this will as executor declined to qualify as such, and the same trust company was appointed by the probate court as administrator c.t.a. of the estate.

The trust company, as administrator d. b. n. c. t. a. of the estate of Adin R. Sherman, claimed as assets of that estate the bank accounts above mentioned which were under the control of the defendant. Being unable to get them, it filed on March 12, 1930, an action of assumpsit against him in the superior court to recover the amount of these bank accounts. The declaration was in four counts. In the first three the funds in question were alleged to be unadministered assets of the estate of Adin R. Sherman, which the defendant was holding for his own use and had refused to deliver to Ella F. Sherman as executrix of the will of Adin R. Sherman or to the plaintiff as administrator d. b. n. c. t. a. of his estate.

The gist of the first two counts was, in substance, that the defendant had requested, demanded, and received from her as executrix the abovementioned promissory note and orders for the payment of the bank accounts of the estate, amounting to $17,045.59, and in consideration thereof promised to obtain the money for the note and bank accounts and to deliver it to her for the purposes of the administration of the estate, and did obtain the money, but refused to deliver it as promised and kept it for his own use. The gist of the third count was much the same except that there were added allegations that Ella F. Sherman "was in poor health, ill and unable to understand and attend to the necessary duties and obligations of her office as executrix and was able to be easily influenced and persuaded against her better judgment and to do that which she should not have done, all of which was well known to the defendant herein, thereupon the defendant did unduly and unlawfully influence the said Ella F. Sherman and with intent to defraud the said estate did demand," etc.; and that she was incompetent to do what she did and he took advantage of her condition. The fourth count was in general assumpsit, alleging an indebtedness of $25,000 by the defendant to the plaintiff, as administrator, for money lent, money received, and for interest thereon.

On April 11, 1930, the plaintiff, as administrator c t. a. of the estate of Ella F. Sherman, filed the writ and declaration in the instant case to recover the amount of the same bank accounts as a part of her estate. The declaration is in three counts, the first being substantially the same as the first two in the former case, and the second and third being substantially the same respectively as the third and fourth in the former case, mutatis mutandis in each count by reason of the facts that in the later case the plaintiff is administrator of the estate of Ella F. Sherman, that the note and the original bank accounts are alleged to have belonged to her, and that she is alleged to have acted individually and not as executrix of her husband's will. The damages in the writ and declaration are laid at $25,000.

The first trial of the former case, in the superior court, resulted in a directed verdict for the plaintiff for $22,981.94. After a hearing in this court on the defendant's bill of exceptions, his exceptions to the direction of a verdict for the plaintiff and to the refusal of the trial justice to direct a verdict for him were sustained on the ground that the evidence showed clearly that the estate of Adin R. Sherman had been substantially fully administered by Ella F. Sherman as executrix; that she was entitled to take, and had taken, as her own, the personalty in dispute, and had the right, and under the will the power, to give it to her son; and that the primary purpose of the action was not "to administer the estate of Adin R. Sherman, but rather to secure the return to the estate of Ella F. Sherman of the gifts made to defendant." Rhode Island Hospital Trust Co. v. Sherman, 52 R.I. 207, 159 A. 740, 742.

After a hearing under an order giving the plaintiff an opportunity to show cause why...