Opinion
February 19, 1958.
PRESENT: Condon, C.J., Roberts, Andrews and Paolino, JJ.
1. TRIALS. Wills, Evidence. Decision of Lower Court. Executor called as witness clerk of probate court who, over objection of appellants, was permitted to testify that the will was allowed for probate in that court. On exceptions of appellants to ruling of superior court trial justice, Held, that even though the ruling excepted to was technically erroneous it was cured by charge of the court to the effect that whatever happened in probate court had no bearing in superior court and, furthermore, appellants' reasons of appeal stated the very fact brought out in testimony and, since the pleadings went to the jury, the jury would have known what happened in the probate court in any event.
2. EVIDENCE. Opinion Evidence. Failure to Object. Appellants objected to trial court's ruling in allowing will to be marked as an exhibit after an attesting witness had testified to its formal execution and had expressed her opinion, without objection, that the testatrix was of sound mind. Appellants argued that attesting witness should have been required to state the facts upon which she based her opinion. Held, since there was no objection to the question, such argument was not open to the appellants and the procedure followed was in accordance with Rules of Practice of the Superior Court which provided, in effect, that on appeals from probate of wills the proponent should be required only to submit the formal evidence of execution and capacity. Rules of Practice of Superior Court, 31 b.
3. TRIAL. Evidence. Discretion of Court. Limitation of Cross-examination. Appellants excepted to refusal of trial justice to allow them to ask the attesting witness whether the testatrix told the witness how she wanted her will made out. Held, that there was no error in the ruling below since the question was not in cross-examination of anything brought out in direct examination and, where parties are given reasonable latitude in their cross-examination, the decision of the trial court with reference to particular questions will not be disturbed since it is within his discretion to so limit the cross-examination.
4. NEW TRIAL. Motion for New Trial. Testamentary Capacity. Appellants took exception to denial of motion for new trial on the ground that the only evidence of testamentary capacity in the execution of a will was the opinion of an attesting witness to the effect that the testatrix was of sound mind. Held, that appellants overlooked the fact that a codicil was offered in evidence, to which two lawyers were the attesting witnesses, and they testified that they had known testatrix all their lives and that they were living near her when she executed the codicil and further testified, without objection, that she was of sound mind.
5. WILLS. Codicils. Testamentary Capacity. Bearing on Original Will. The codicil republishes a will and, even where the testatrix was of unsound mind at the execution of the will, republication by means of execution of the codicil when she was of sound mind validates the will.
APPEAL from a decree of probate court admitting to probate a purported last will and codicil. After trial in superior court a jury returned a verdict sustaining the will and codicil. Appellants filed bill of exceptions and relied upon certain exceptions to rulings on evidence and to the denial of their motion for new trial. Exceptions which were neither briefed nor argued were deemed to be waived. All appellants' exceptions overruled, and case remitted to superior court for further proceedings.
John DiLibero, for appellants.
Ralph Rotondo, Luigi Capasso, for appellee.
This is an appeal from a decree of the probate court of the city of Providence admitting to probate the purported last will and codicil thereto of Maria DeMarco, late of said city. In the superior court the case was tried to a jury which returned a verdict sustaining the will and codicil. The case is here on the appellants' bill of exceptions which contains forty-one exceptions. However, they are relying only upon the first five which are to rulings on evidence and the last exception which is to the denial of their motion for a new trial.
The executor called as his first witness the clerk of the probate court who was asked what action was taken in that court. Over the objection of appellants he was permitted to answer that the will was allowed for probate. The trial justice stated at the time of the objection that he would take care of that problem in his charge, and he did so when he instructed the jury that "whatever happened there has no bearing here * * *." Had the appellants wished to have the trial justice caution the jury at the time they took their exception he doubtless would have done so. Furthermore, the appellants' reasons of appeal state this very fact, and since the pleadings go to the jury the jury would have known what happened in the probate court. In any event if the ruling excepted to was technically erroneous it was cured by the charge. This exception is overruled.
There is nothing in appellants' brief about exception 2 and nothing was said about it in the argument. Therefore it is deemed to be waived. The other exceptions which have been neither briefed nor argued are deemed to be waived.
The appellants' exception 3 is to the court's allowing the purported will to be marked as an exhibit after an attesting witness had testified as to its formal execution and had expressed her opinion, without objection, that the testatrix was of sound mind. The appellants argue here that the attesting witness should have been required to state the facts upon which she based her opinion, but as there was no objection to the question that argument is not open to them. The procedure followed was in accordance with Rule 31 b. of the Rules of Practice of the Superior Court which reads as follows: "On appeals from probate of a will, the proponent shall be required, in putting in his case, only to submit the formal evidence of execution and capacity." This exception is overruled.
The appellants' exceptions 4 and 5 are to the refusal of the trial justice to allow them to ask the attesting witness whether Maria DeMarco told the witness how she wanted her will made out. This was not in cross-examination of anything brought out in direct examination since in direct examination this witness was only asked the usual questions relative to the formal execution of the will. The appellants were given reasonable latitude in their cross-examination of this witness and it was within the discretion of the trial justice to limit them. In view of what we have said, the trial justice did not abuse his discretion in making this ruling. See T.N. Glass Corp. v. Adolph Aron Son, R.I., 147 A. 667. These exceptions are overruled.
The last exception, numbered 41, which was to the denial of the motion for a new trial, is without merit. The sole argument made to us was that because the only evidence of testamentary capacity was the opinion of the attesting witness above referred to that the testatrix was of sound mind, the verdict on this point was unsupported. The appellants completely overlook the fact that when the codicil was offered two lawyers were the attesting witnesses. They testified that they had known Maria DeMarco all their lives and that they were living near her when she executed the codicil. They further testified, without objection, that she was of sound mind. The codicil republished the will, and even had the testatrix been of unsound mind at the time of the execution of the will this republication when she was of sound mind validated the will. 57 Am. Jur., Wills, § 628, p. 429.
On the issue of testamentary capacity, the trial justice in denying the motion for a new trial stated: "* * * so far as the mental capacity is concerned, there is absolutely no evidence that a jury could have found that she was not mentally capable of making that will or codicil * * *." This exception is overruled.
All of the appellants' exceptions are overruled, and the case is remitted to the superior court for further proceedings.