Dinan v. Marchand, No. 17536.

• Decision Date: 22 August 2006
• Docket Number: No. 17536.
• Citation: 903 A.2d 201,279 Conn. 558
• Court: Connecticut Supreme Court
• Parties: Althea S. DINAN v. Donat C. MARCHAND, Administrator (Estate of Albert A. Garofalo).

903 A.2d 201

279 Conn. 558

Althea S. DINAN v. Donat C. MARCHAND, Administrator (Estate of Albert A. Garofalo).

No. 17536.

Supreme Court of Connecticut.

Argued April 10, 2006.

Decided August 22, 2006.

COPYRIGHT MATERIAL OMITTED

Richard L. Albrecht, with whom was Barbara M. Schellenberg, and, on the brief, Courtney A. George, Bridgeport, for the appellant (plaintiff).

Joyce H. Young, with whom, on the brief, was W.I. Haslun II, Greenwich, for the appellee (defendant).

BORDEN, NORCOTT, KATZ, PALMER and VERTEFEUILLE, Js.

KATZ, J.

The plaintiff, Althea S. Dinan, appeals, following our grant of certification, from the judgment of the Appellate Court affirming the judgment of the trial court, rendered after a jury trial, in favor of the defendant, Donat C. Marchand, administrator of the estate of Albert A. Garofalo (testator). Dinan v. Marchand, 91 Conn.App. 492, 881 A.2d 503 (2005). The plaintiff had claimed that the will and codicil of her husband, the testator, improperly had been admitted to probate because the testator was under the undue influence¹ of his daughter, Anne Patten, when, in anticipation of his marriage to the plaintiff, he executed the codicil, thereby republishing his will that had devised nothing to the plaintiff. The plaintiff claims that the Appellate Court improperly concluded that the trial court properly had excluded certain testimonial evidence regarding threats allegedly made to the testator by his daughter in support of the claim of undue influence: (1) testimony from the plaintiff, offered under the dead man's statute, General Statutes § 52-172,² and as state of mind evidence; and (2) testimony from third party witnesses, offered as impeachment evidence. We conclude that the Appellate Court improperly affirmed the trial court's exclusion of the plaintiff's challenged testimony on the alternative ground of hearsay, but that the Appellate Court's impropriety was harmless. We also conclude that the Appellate Court properly concluded that the record was inadequate to evaluate the propriety of the exclusion of the third party testimony. Accordingly, we affirm the judgment of the Appellate Court.

The following facts and procedural history, as summarized by the Appellate Court, are relevant to this appeal. "At the time the testator executed his will on December 4, 1995, he was a widower with one child, Patten, and three grandchildren. The will named as beneficiaries [1] the testator's granddaughter, Nicole Toth, [2] Patten, and [3] a residuary trust of which Patten was trustee and Patten and the three grandchildren were beneficiaries. Patten was named executrix of the estate,³ and Toth was named successor executrix. On December 5, 1997, two days before his marriage to the plaintiff, the testator executed a codicil to his will. It provided in relevant part: `I am executing this instrument in anticipation of my marriage to [the plaintiff] on December 7, 1997 and direct that my marriage subsequent to the execution hereof shall not be construed to revoke my will. . . . Except as [previously] specified [in the codicil], my Will shall continue in full force and effect as executed by me on and dated December 4, 1995, without other or further direct or implied amendment, modification or alteration. I hereby reaffirm and republish my Will subject only to the amendments thereof [in this codicil].'⁴ The plaintiff and the testator were married as planned.

"The testator died on July 21, 2000, survived by the plaintiff, Patten and his three grandchildren. Patten offered the will and codicil for admission to probate on July 25, 2000. The plaintiff challenged the admission of the instruments, but later withdrew her objections while reserving the right to appeal, at which time the instruments were admitted as the testator's will. The Probate Court granted the plaintiff's petition to appeal from the admission of the instruments. Additionally, upon the plaintiff's petition, the Probate Court removed Patten as executrix of the testator's estate and declined to appoint Toth successor executrix. The Probate Court instead named the defendant, an attorney with no beneficial interest in the estate, as administrator. . . . The plaintiff made a timely election against the will as surviving spouse. See General Statutes § 45a-436.⁵

"The plaintiff appealed to the Superior Court on the ground that the testator executed the codicil to his will `while under the influence, domination and control of Patten, and as a result of this influence, domination and control, unduly and improperly exerted, the will and codicil were not the free and voluntary expression of the testamentary intent of the [testator].' Trial was held from April 1 to April 8, 2004, following which the jury returned a verdict in favor of the defendant, finding that the will and codicil were executed properly, that the testator had the proper testamentary capacity to execute the codicil and that the codicil was not procured by undue influence. The trial court rendered judgment in accordance with the verdict after denying the plaintiff's motion to set it aside." Dinan v. Marchand, supra, 91 Conn.App. at 494-96, 881 A.2d 503.

The plaintiff then appealed from the trial court's judgment to the Appellate Court claiming that the trial court improperly had excluded the testimony of the plaintiff and two other witnesses relating to threatening statements that Patten allegedly had made to the testator. The plaintiff made an offer of proof regarding the testimony she would have given, if allowed, as to a conversation in which the testator had recounted to her an argument he had had with Patten in which Patten allegedly had threatened to take certain action if the testator did not execute the codicil. The plaintiff made no specific offer of proof as to the other two witnesses' proposed testimony regarding Patten's alleged threats.

The Appellate Court first considered the trial court's exclusion of the plaintiff's testimony under the rule of Dale's Appeal from Probate, 57 Conn. 127, 17 A. 757 (1888), and concluded that the trial court's reliance on the rule in that case was misplaced. Dinan v. Marchand, supra, 91 Conn.App. at 503, 881 A.2d 503. Specifically, the Appellate Court noted that Dale's Appeal from Probate involved a will contest by a legatee who challenged the testamentary capacity of the testatrix and claimed undue influence by the testatrix' son in execution of the will. Id., at 501, 881 A.2d 503. The court noted that, in Dale's Appeal from Probate, this court had held that one legatee's statement, offered as an admission against interest, if potentially harmful to the inheritance rights of other legatees, was inadmissible, under the offered hearsay exception for admissions against interest.⁶ Id. The court in Dale's Appeal from Probate and its progeny reasoned that the admission effectively would be used against all the legatees, because a finding of undue influence would invalidate the entire will. Id., at 501-502, 881 A.2d 503, citing Livingston's Appeal from Probate, 63 Conn. 68, 76, 26 A. 470 (1893). Although the Appellate Court recognized that Patten's statements also potentially threatened the rights of the other legatees under the will, the court concluded that the nature of her statements differed from those in Dale's Appeal from Probate and its progeny. Dinan v. Marchand, supra, at 502-503, 881 A.2d 503. In Dale's Appeal from Probate, supra, at 129, 17 A. 757, the legatee had stated that the testator lacked capacity or executed an instrument under undue influence but later sought to take under the contested will, whereas Patten's alleged threats against the testator were not admissions that the codicil was invalid, but, rather, statements of a legatee that the plaintiff sought to utilize to prove the legatee's undue influence over the testator. Dinan v. Marchand, supra, at 503, 881 A.2d 503. In fact, the Appellate Court noted, Patten allegedly had made the threats to protect her pecuniary interest in the testator's existing will and thereafter insisted that the will and codicil properly were executed and valid. Id., at 503 and n. 11, 881 A.2d 503.

Although the Appellate Court concluded that the trial court improperly had excluded the plaintiff's testimony based on Dale's Appeal from Probate, it held that the impropriety was "harmless."⁷ Id., at 503-504, 881 A.2d 503. The Appellate Court reasoned that, although Patten's statements properly could be admitted for a nonhearsay purpose, the testator's recounting of those statements to the plaintiff was inadmissible hearsay. Id., at 505, 881 A.2d 503. The Appellate Court summarily dismissed in a footnote the application of § 52-172, commenting that, "the oft-misunderstood dead man's statute does not create a hearsay exception for statements of dead witnesses." (Internal quotation marks omitted.) Id., at 506 n. 15, 881 A.2d 503. Finally, because the plaintiff had made no offer of proof as to the testimony of her two additional witnesses on this matter, the Appellate Court concluded that it could not determine if the evidentiary ruling limiting their testimony was improper and in turn harmful.⁸ Id., at 504, 881 A.2d 503. Accordingly, the Appellate Court affirmed the trial court's judgment. We thereafter granted the plaintiff's petition for certification to appeal, limited to the following issue: "Having determined that the trial court improperly had invoked the rule of Dale's Appeal from Probate, [supra, 57 Conn. at 127, 17 A. 757], to exclude evidence in the present case, did the Appellate Court improperly affirm the trial court's evidentiary rulings?" Dinan v. Marchand, 276 Conn. 917, 888 A.2d 84 (2005).

On appeal to this court, the plaintiff contends that the Appellate Court improperly: (1) concluded that the plaintiff's testimony relating Patten's alleged threats through the testator's voice, which was highly probative as to the ultimate issue of undue influence, was inadmissible...