Berkeley v. Berkeley

• Decision Date: 17 February 1965
• Citation: 152 Conn. 398,207 A.2d 579
• Court: Connecticut Supreme Court
• Parties: Madeline T. BERKELEY v. Frederick D. BERKELEY III et al., Executors (ESTATE of Frederick D. BERKELEY) et al. Supreme Court of Errors of Connecticut

Page 579

207 A.2d 579

152 Conn. 398

Madeline T. BERKELEY v. Frederick D. BERKELEY III et al., Executors (ESTATE of Frederick D. BERKELEY) et al.

Supreme Court of Errors of Connecticut.

Feb. 17, 1965.

Walter W. Walsh, New Haven, with whom on the brief, were Frank W. Flood and Robert K. Walsh, New Haven, for appellant (plaintiff).

Samuel R. Dorrance, New Canaan, for appellees (named defendant and others, executors).

Before KING, C. J., and MURPHY, ALCORN, COMLEY and SHANNON, JJ.

KING, Chief Justice.

Frederick D. Berkeley died on February 12, 1962, leaving a last will and testament which was admitted to probate on May 18, 1962, over the objections of his widow, Madeline T. Berkeley, hereinafter referred to as the contestant. In the Superior Court, the contestant amended her reasons of appeal so that her sole reason of appeal was that the decedent's will, executed on October 26, 1961, was revoked by the birth of a child on April 29, 1962, because the will made no provision for such a contingency within the requirements of § 45-162 of the General Statutes, printed in the footnote. ¹ A demurrer to the contestant's amended reason of appeal, incorrectly termed an amended complaint, was sustained on the basic ground that the 'statutory requirement * * * is fully met by the language of the will before the court.' The contestant failed to plead over, and judgment was rendered for the proponents. The effect of this judgment was to affirm the decree of the Probate Court admitting the will as a valid testamentary instrument.

In the appeal to this court, the contestant has filed two assignments of error. The first claims error in an order by the Superior Court requiring the amendment of the reason of appeal to make it more specific. Since the order was not made a part of the record, there is no way in which this court can review this claim. It does not appear that the order was improperly made under Practice Book § 151.

The second assignment of error attacks the action of the Superior Court in sustaining the demurrer to the amended reason of appeal. The main ground of attack is that a demurrer will not lie to a reason of appeal under the rule of cases such as St. Leger's Appeal, 34 Conn. 434, 448.

In any appeal from probate, the Superior Court is exercising a limited statutory jurisdiction and has no greater powers than the Probate Court. Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 565, 192 A.2d 44; Palmer v. Reeves, 120 Conn. 405, 409, 182 A. 138; St. Leger's Appeal, supra, 34 Conn. 447; 1 Locke & Kohn, Conn. Probate Practice § 215. Since there is a trial de novo on the appeal to the Superior Court, the proponent of a will has the burden of proof on the statutory issues of due execution and testamentary capacity exactly as he had in the Probate Court. Boschen v. Second National Bank, 130 Conn. 501, 504, 35 A.2d 849; Livingston's Appeal, 63 Conn. 68, 74, 26 A. 470. This is so whether in the appeal from probate the proponent is the appellee or the appellant. Livingston's Appeal, supra, 75, 26 A. 470. Moreover, since the probate of a will is not strictly an adversary proceeding, this is a burden which cannot be fully waived by the agreement or pleading of the parties. Livingston's Appeal, supra.

It is true that under Practice Book § 151 reasons of appeal embracing each claim of invalidity intended to be raised, including any claim of lack of due execution or testamentary capacity, should be filed by a contestant. Cases such as St. Leger's Appeal, supra, which were decided before reasons of appeal were required to be filed under what is now Practice Book § 151, are no longer of controlling effect on this question of pleading. Livingston's Appeal, supra, 74, 26 A. 470; 1 Locke & Kohn, op. cit. § 207. But the effect of failing to include in the reasons of appeal either or both of these two statutory issues of due execution and testamentary capacity is to preclude the contestants from introducing any evidence concerning those issues. The proponents, however, must still produce evidence of each statutory issue sufficient, at least, to make out a prima facie case. Shulman v. Shulman, 150 Conn. 651, 656, 193 A.2d 525. And the contestants may still cross-examine the proponents' witnesses as to these two statutory issues. Livingston's Appeal, supra, 75, 26 A. 470.

The effect, however, of failing to include in the reasons of appeal issues in avoidance, on which the contestants have the burden of proof, is quite different. Such issues include undue influence, fraud, mistake and revocation. Spencer's Appeal, 77 Conn. 638, 640, 60 A. 289; 2 Locke & Kohn, op. cit. § 307, p. 139. The contestants are precluded from introducing evidence, or cross-examining the proponents' witnesses, as to any such issue in avoidance not made a reason of appeal. Livingston's Appeal, supra; Boschen v. Second National Bank, supra; Crane v. Manchester, 143 Conn. 498, 501, 123 A.2d 752. Indeed, under the present form of Practice Book § 151, the trier cannot consider any issue in avoidance not made a reason of appeal. Livingston's Appeal, supra; 1 Locke & Kohn, op. cit. § 207. Even if the demurrer had been properly sustained to the amended reason of appeal alleging the facts claimed to establish revocation, the effect would be merely to remove that ground as a basis of appeal. Practice Book § 112; Grady v. Kennedy, 145 Conn. 579, 584, 145 A.2d 124. The two statutory issues of due execution and testamentary capacity, on which the proponents had the burden of proof, would still remain undisposed of unless and until the proponents had made out, as to each issue, at least a prima facie case. See cases such as Shulman v. Shulman, supra. The record does not indicate that the proponents ever presented any evidence in the Superior Court on either issue.

While there is language in Livingston's Appeal, supra, suggesting the possibility of affirming a decree of a court of probate on demurrer as a question of law, that possibility could not exist here since affirmance of the decree after the demurrer was sustained would erroneously obviate the requirement resting on the proponents to offer evidence at least making out a prima facie case as to the two statutory issues of due execution and testamentary capacity. ² Issues in avoidance on which the contestant has the burden of proof may be susceptible of final disposition under a properly drawn demurrer. But the statutory issues of due execution and testamentary capacity remain unless the issue in avoidance is held adequate to render the will invalid, as in Fulton Trust Co. v. Trowbridge, 126 Conn. 369, 372, 11 A.2d 393. Here the ruling on the demurrer was adverse to the efficacy of the issue of revocation. It follows that even had the court been correct in sustaining the demurrer, there was error in the rendition,...