Citation Numbers: 80 R.I. 16
Judges: Baker, Condon, Connell, Flynn
Filed Date: 8/1/1952
Status: Precedential
Modified Date: 10/17/2022
This is a petition for permission to file out of time an appeal from a probate decree -allowing the will of Oscar Barsoian, late of the city of Pawtucket, deceased. The relief is sought under general laws 1938, chapter 535, §6, on the ground that petitioner’s failure to take, within the statutory period, an appeal from such decree of the probate court was caused by accident, mistake or unforeseen cause.
It appears without dispute that Oscar Barsoian, the testator, was married twice and had children of both marriages. By his first wife, who is deceased, he had a daughter Lucy Balemian, who is the present petitioner, and also a son who died during World War II. By his second wife Lausean, who before her marriage was a widow with one child and who is a respondent, he had two other children. The testator died November 24, 1950 and his will was not filed for probate until January 30, 1951. Thereafter the petition for probate, which apparently listed the names and addresses of all the heirs including petitioner, was duly advertised in accordance with the law then in effect and was heard on February 28, 1951 when a decree allowing said will was entered by the probate court of the city of Pawtucket.
The petitioner did not file an appeal within the statutory period but now seeks relief substantially on the basis of six facts, all of which are stated in the petition as happening at some time prior to testator’s death. These allegations are generally: (1) that Lausean Barsoian, the testator’s second wife, represented to petitioner that he had no money or assets and that a mortgage on the house was in danger of being foreclosed; (2) that said wife had tried to
On the other hand the executor, who is the child of Lausean Barsoian by her first marriage, is contesting the petition and in addition to his own affidavit he has filed one by each of the following: the testator’s wife, his two children by the second marriage, his doctor, and his lawyer. These affidavits set forth many facts which either contradict or reasonably explain the allegations relied upon by petitioner. Indeed in certain material particulars they are of such a nature as to submit to verification and to have called for a reply by petitioner, if the stated facts were not correct. However, no affidavit or specific contradiction has
For example, the widow in substance and effect categorically denied any misrepresentation concerning the will, the testator’s assets, the mortgage foreclosure, and the insurance policy as stated in petitioner’s affidavit. She points out that petitioner’s allegation concerning the alleged misrepresentations about the testator’s assets and about the danger of a foreclosure of the mortgage on the house are not fixed as to time but are merely stated as happening at “Some time prior” to the testator’s death; that as a matter of fact they were made some fifteen years previously at a time during the great depression of the 1930’s; that such representations were true at that time, as the testator’s bank account was down to $1 and there was a threatened foreclosure of the mortgage on the house, which was owned from the beginning by her and the testator as tenants in common; and that they were then desperately in need of cash to prevent the loss of the house.
She further explains that the proposed sale of the life insurance policy was made at the same time in order to raise money to prevent the foreclosure; that the offer was made by the testator himself and not by her; that the policy was entrusted to petitioner and her husband so that they might investigate its status and value; that they were unable or unwilling at the time to take it over; and further that the policy was not valueless, as petitioner alleged, but that after she and her husband had refused the testator’s offer the insurance company granted a loan upon said policy to the extent of $200.
The widow further categorically denies any hostility to the children of testator’s first marriage or to the petitioner’s husband. On the contrary she asserted that she actually reared petitioner’s brother for at least thirteen and one-half years from the time of her marriage to the testator; that petitioner and her husband were always welcome and had visited her home on many occasions; that contrary to their statements she never prevented petitioner from talking
She admitted that she had not expressly disclosed the existence of a will during the testator’s life but explained that she was acting under instructions of the testator not to tell any of the children about it lest differences develop between the families. Moreover it is expressly admitted by petitioner and her husband that neither of them ever asked her or the testator during his life whether there was a will in existence; that she never stated to either of them that there was no will; and that they made no inquiry at the probate court or elsewhere.
Furthermore she asserted that it was a custom of her race to have a family reunion a month from the death of a parent and a similar gathering the following Christmas; that these reunions were held and the petitioner and her husband were expected to attend; that because she was greatly upset at the time of the funeral by both the testator’s death and the critical illness of her son in the hospital, she did not talk to anybody about the will; that she expected to see petitioner at such reunions and to tell her then of the contents of the will; and that petitioner and her husband, though intending to come, at the last minute explained they were unable to attend such reunions solely for reasons connected with their family in New York. She further asserted that because of all these unusual conditions she had not instructed the attorney to institute probate proceedings until January 30, 1951; that thereafter she left the matter in his hands; and that she supposed he would do what was necessary under the law.
It is further pointed out in her affidavit and that of the family physician that everything had been done for the health of the testator; that he had the capacity to make a will; and that there was no question of undue influence.
The petitioner in a proceeding of this type has the burden of showing sufficient facts to constitute accident, mistake or unforeseen cause, which will warrant a conclusion that justice requires a trial of the case on its merits, and each case must be determined on its own facts. Podrat v. Frank, 76 R. I. 19, 23. The burden is not satisfied by a showing of facts which indicate strongly that a petitioner has slumbered on his rights or was negligent in failing to take advantage of reasonably available facts which would lead to notice and require the filing of an appeal within the statutory period. See MacNeil v. Morgan, 73 R. I. 165, 169.
An examination of the petition and affidavits filed in the instant case satisfies us that petitioner has not established facts to bring her case within the terms of the statute and to satisfy the above-mentioned burden. Her petition and affidavits are largely expressed in general terms. Chiefly the representations relied upon are stated as made by the wife at “Some time prior” to the testator’s death, without further definition. The affidavits for the respondents, however, are definite and detailed. They showed reasonably, in the absence of any counter affidavit contradicting the explicit statements therein, that the representations relied on were made some fifteen years ago during the 1930 depression and that they were actually true as of that time. These assertions are not unreasonable, inherently improbable or inconsistent and they are not otherwise contradicted.
It is admitted that neither petitioner nor her husband ever asked the testator or his wife concerning the existence of a will and that she never stated to them that there was no will. Admittedly no investigation whatever was made by the petitioner from the testator or from the records, or
In our judgment the uncontradicted statements and explanations in the affidavits for the respondents clearly show that the petitioner has not made out such a case of accident, mistake, unforeseen cause or fraud under this statute that requires the granting of her petition. On the contrary her failure to file an appeal within the statutory period appears to be the result of her own indifference or neglect.
The prayer of the petition is denied.