Salvatore v. Hayden

• Decision Date: 24 June 1957
• Citation: 133 A.2d 622,144 Conn. 437
• Court: Connecticut Supreme Court
• Parties: James D. SALVATORE et al. v. Anna S. HAYDEN, Executrix (Estate of Frank Salvatore). Supreme Court of Errors of Connecticut

Page 622

133 A.2d 622

144 Conn. 437

James D. SALVATORE et al. v. Anna S. HAYDEN, Executrix (Estate of Frank Salvatore).

Supreme Court of Errors of Connecticut.

June 24, 1957.

Frank J. Monchun, Hartford, with whom was Harry Cooper, Hartford, for appellant (defendant).

R. Graeme Smith, Hartford, with whom was Phyllis Corneal, Hartford, for appellees (plaintiffs).

Before O'SULLIVAN, C. J., and BALDWIN, WYNNE, DALY and KING, JJ.

BALDWIN, Associate Justice.

This is an appeal by the defendant from a judgment rendered upon the denial of a motion to set aside the verdict invalidating the will of Frank Salvatore. Error is assigned and pressed in the denial of the motion, in the charge and in rulings on evidence.

The defendant, as proponent of the will, made the following claims of proof: Frank Salvatore died on May 12, 1955, aged seventy-eight years. He left a will executed on July 9, 1953, in which he gave the life use of the family home at 382 Rainbow Road, Windsor, to his widow, and the remainder, together with all of his other property, to Anna S. Hayden, his daughter, whom he designated executrix. Anna, his oldest child, was crippled and walked with difficulty. She had long lived in a house owned by the testator which was next door to his home, and at one time she had worked for him in a grocery store which he had conducted. There were six other children, Mary Quagliaroli, Josephine Petinus, Dominica Vannie and Leo, James, and Francis Salvatore. The testator's reason for favoring Anna was that she was crippled, while the other six children were in good health, physically strong and able to care for themselves. The testator suffered a cerebral vascular accident at his home on June 6, 1953, and was taken to St. Francis Hospital in Hartford, where he remained until July 17, 1953. It was during this period, on July 9, 1953, that he executed his will. He had sufficient mental capacity to make a will and was not unduly influenced in favor of Anna.

The plaintiffs are James and Francis Salvatore, Dominica Vannie and Josephine Petinus. As contestants, they claim to have proven that the testator did not have sufficient mental capacity to make a valid will, that he was unduly influenced by Anna Hayden and Mary Quagliaroli, and that the latter, having procured an attorney to prepare the will, guided the testator's hand in the execution of it while the testator was in a weak, feeble physical condition and in a confused and emotionally disturbed state of mind.

The defendant assigns error in the finding of certain paragraphs of her claims of proof. She also assigns error in the finding of a number of paragraphs of the plaintiffs' claims of proof. In a jury case the claims of proof are used, not to test the court's ruling on the motion to set aside the verdict, but to consider errors claimed in the rulings during the trial and in the charge. The claims of proof found fairly present the facts necessary for this purpose. Maltbie, Conn.App.Proc. (2d Ed.) p. 199. Furthermore, a litigant ordinarily may not force into the claims of proof of his adversary factual matters which are objectionable to the latter and upon which he does not rely. Castaldo v. D'Eramo, 140 Conn. 88, 93, 98 A.2d 664; Maltbie, op. cit., p. 199. No corrections are warranted.

The court did not err in denying the motion to set aside the verdict. Under proper instructions from the court, the questions of the mental capacity of a testator and undue influence present issues of fact. Nichols v. Wentz, 78 Conn. 429, 435, 62 A. 610; Spencer v. Merwin, 80 Conn. 330, 335, 68 A. 370; Saunders' Appeal, 54 Conn. 108, 116, 6 A. 193; 2 Locke & Kohn, Conn. Probate Practice, § 329. On this feature of the appeal, the absence of an assignment of error attacking the charge, apart from one which will be discussed hereinafter, warrants the assumption that the charge was otherwise correct in law and sufficient for the guidance of the jury. Efland v. Guyott Construction Co., 138 Conn. 183, 186, 82 A.2d 925; Leverone v. City of New London, 118 Conn. 463, 467, 173 A. 108. The testimony on both mental capacity and undue influence was conflicting. An examination of all the evidence printed in the appendices discloses a sufficient basis, as to both issues, reasonably to support the verdict. The claim is made that there was no direct evidence of undue influence. Undue influence need not be proved by direct evidence, it may be inferred from all the circumstances. Wheeler v. Rockett, 91 Conn. 388, 394, 100 A. 13; 2 Locke & Kohn, op. cit., § 321. There was evidence of sufficient facts and circumstances from which the jury reasonably could have found undue influence. Lee v. Horrigan, 140 Conn. 232, 239, 98 A.2d 909. Moreover, since no interrogatories were filed, the verdict, being a general one, can readily be supported on the ground of lack of testamentary capacity. Ross v. Koenig, 129 Conn. 403, 405, 28 A.2d 875; see Doolittle v. Upson, 138 Conn. 642, 643, 88 A.2d 334.

The defendant assigns error in the court's charge to the jury that 'the natural objects of the testator's bounty; this is, Frank Salvatore's bounty, * * * in this case, embraces the same persons as the phrase 'heirs-at-law." The testator's heirs at law were his wife and his children. Cum.Sup. § 3002d; § 7058. We have indicated that the phrase 'natural objects of the testator's bounty' does not mean those with whom the testator 'has been on terms of confidence, intimacy, and affection, but those who will take in the absence of a will, his next of kin.' Page v. Phelps, 108 Conn. 572, 585, 143 A. 890, 894; 2 Locke & Kohn, op. cit., p. 147. The trial court's definition of the phrase was correct. The defendant, however, presses her claim by asserting that the definition given was prejudicial when read in connection with a later instruction to the effect that an...