Strzebinska v. Jary
| Decision Date | 22 July 1937 |
| Docket Number | No. 7825.,7825. |
| Citation | 193 A. 747 |
| Parties | STRZEBINSKA v. JARY. |
| Court | Rhode Island Supreme Court |
Exceptions from Superior Court, Providence and Bristol Counties; Herbert L. Carpenter, Judge.
Will contest by Karolina Strzebinska opposed by Anisim Jary, executor. Verdict in favor of the will was directed by the superior court sitting with a jury, on appeal from a decree of the probate court, and contestant brings exceptions.
Exceptions passed upon sustained, and case remitted for new trial.
Arthur L. Conaty, of Providence, for appellant. Thomas J. Flynn, James W. Leighton, and Flynn & Leighton, all of Providence, for appellee.
This is an appeal from a decree of the probate court of the city of Providence admitting to probate an instrument purporting to be the last will and testament of Kataryna Bobowski, alias. The appeal was heard in the superior court by a justice sitting with a jury. At the conclusion of the testimony, the trial justice directed a verdict in favor of the will. The case is before this court on the appellant's exception to this action of the court and on certain other exceptions taken during the trial.
It appears from a none too clear record on this point that when the testatrix, Kataryna Bobowski, came to this country about twenty-eight years before her death in Providence on January 26, 1935, she left a husband, sisters, and a stepson in Poland. Some years after the death of her husband in Poland, she married one Jozef Zeberowski, alias Joseph Ziobrowski, and with him owned as joint tenants a house on Malbone street in Providence. Ziobrowski died July 31, 1932. She never married again.
The testatrix was about sixty-three years old when she died. She could not speak, read, or write English. The will was drawn in the name of Kataryna Bobowski and was executed by her on September 29 1934, under that name by cross. At the time of her death she was the sole owner of the house on Malbone street and had $610.50 in a savings account in a local bank. The will leaves her entire estate to one Anisim Jary, a boarder, who was not related to her in any way. He was also named executor in the will.
The main ground urged against the validity of the will is fraud and undue influence on the part of Jary and his friend, Ignacy H. Shilo, who is a witness to the will. It is sufficient for our purposes now to say that there was considerable testimony on this point and that Jary, who was present at the trial, failed to testify in explanation of testimony adverse to him. There is also testimony that both before and after signing the will the testatrix expressed the intention of leaving her property to her sister in Poland, and further, that she did not realize that she had signed a will until it was suggested that she may have done so by a neighbor to whom she had gone for assistance. Assuming for the present that the identity and relationship of the appellant to the testatrix was sufficiently established by the evidence to constitute her a "person aggrieved" so as to maintain an appeal under our statute, it was reversible error for the court to direct a verdict in favor of the will under the facts in evidence. Huebel v. Baldwin, 45 R.I. 40, 119 A. 639; Dart v. Rhode Island Hospital Trust Co., 45 R.I. 173, 121 A. 211; Smith v. Smith, 54 R.I. 402, 173 A. 539.
The appellant, who it is claimed is a sister of the testatrix, was in Poland and, as far as the record shows, is still living in that country. The will having been admitted to probate by the probate court of the city of Providence, an appeal was duly taken to the superior court by her attorney, who was acting in her behalf under a power of attorney that was prepared by him in this country and apparently signed by her in Poland. The signature on the power of attorney is followed by the words "siostra Katarzymy Ziebrowskiey," meaning "sister" of the person named. The envelope which is attached to this power of attorney bears the stamps and postmarks of Poland and of the United States. The name of the testatrix' second husband was Ziobrowski. Whether the difference in the name quoted and the name of the testatrix by her second marriage as it appears in the record is due to phonetic spelling we are unable to tell.
Towards the latter part of the trial, the court questioned the sufficiency of this evidence to establish the identity and relationship of the appellant to the testatrix. In the discussion that followed, counsel for the appellant contended that the power of attorney, which was in evidence, was at least sufficient, under the peculiar circumstances in which he and his client found themselves, to raise a question of fact for the jury. The court rejected this contention and, having expressed the opinion that the "only way to get her evidence before the court is by deposition," counsel for the appellant formally moved that the case be taken from the jury and passed so that he might take his client's deposition in Poland. The trial justice,...
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State v. Wynne
... ... 204 S.W.2d 934 ... law." Strzebinska v. Jary (R.I.), 193 A. 747, 748, 749. "By judicial discretion is meant sound discretion guided by law. It does not mean an arbitrary discretion. 9 ... ...
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State v. Patriarca
...It is well established that a motion of this nature is directed to the sound discretion of the trial justice. Strzebinska v. Jary, 58 R.I. 496, 193 A. 747 (1937). However, that discretion must be exercised in a manner consistent with the constitutional guarantees involved. State v. Rossi, 7......
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State v. Wynne
... ... to what is right and equitable under the circumstances and ... [204 S.W.2d 934] ... law." Strzebinska v. Jary (R.I.), 193 A. 747, ... 748, 749. "By judicial discretion is meant sound ... discretion guided by law. It does not mean an arbitrary ... ...
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Baumgarten's Estate, In re
... ... Godkin, 1904, 122 Wis. 646, 650, 651, 100 N.W. 1057; Phillips v. Brandt, 1950, 231 Minn. 423, 43 N.W.2d 285, 16 A.L.R.2d 1048; and Strzebinska v. Jary, 1937, 58 R.I. 496, 193 A. 747, 112 A.L.R. 391 ... In such a situation the usual practice is for the appellate court to ... ...