Dinan v. Marchand

• Decision Date: 20 September 2005
• Docket Number: No. 25754.,25754.
• Citation: 881 A.2d 503,91 Conn.App. 492
• Court: Connecticut Court of Appeals
• Parties: Althea S. DINAN v. Donat C. MARCHAND, Administrator (Estate of Albert A. Garofalo).

881 A.2d 503

91 Conn.App. 492

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

No. 25754.

Appellate Court of Connecticut.

Argued May 23, 2005.

Decided September 20, 2005.

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

Joyce H. Young, with whom, on the brief, were W.I. Haslun II, Greenwich, and Stephen G. Walko, for the appellee (defendant).

SCHALLER, McLACHLAN and PETERS, Js.

McLACHLAN, J.

The primary issue in this appeal from probate concerns the admissibility of testimony recounting the specific wording of threats allegedly made to the testator in the days before he executed a codicil to his will. The plaintiff, Althea S. Dinan, alleged that the testator, her husband Albert A. Garofalo, was under the undue influence¹ of his daughter, Anne Patten, when he executed a codicil to his will in anticipation of his marriage to the plaintiff. The codicil republished the will, which devised nothing to the plaintiff. The plaintiff appeals following the judgment of the Superior Court on appeal from the Probate Court, rendered in accordance with the jury verdict in favor of the defendant administrator, Donat C. Marchand. The plaintiff claims that the court, in addition to excluding improperly testimony regarding Patten's alleged threats, improperly deprived the plaintiff of a final closing argument, instead granting the defendant such argument. We affirm the judgment of the trial court.

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 the testator's granddaughter, Nicole Toth, Patten, and a residuary trust of which Patten was trustee and Patten and the three grandchildren were beneficiaries. Patten was named executrix of the estate, 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 stated in relevant part, "I am executing this instrument in anticipation of my marriage to Althea S. Dinan 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]."² 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 c.t.a, d.b.n. The plaintiff made a timely election against the will as surviving spouse. See General Statutes § 45a-436.³

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 Decedent." 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.

I

The plaintiff claims that the trial court improperly excluded testimony by three witnesses relating the wording of threats Patten allegedly made to the testator prior to his execution of the codicil. We reject the plaintiff's demand for a new trial.

"[W]e will set aside an evidentiary ruling only when there has been a clear abuse of discretion.... [B]efore a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful.... The harmless error standard in a civil case is whether the improper ruling would likely affect the result.... When judging the likely effect of such a trial court ruling, the reviewing court is constrained to make its determination on the basis of the printed record before it.... In the absence of a showing that the [excluded] evidence would have affected the final result, its exclusion is harmless." (Citation omitted; internal quotation marks omitted.) Kalams v. Giacchetto, 268 Conn. 244, 249-50, 842 A.2d 1100 (2004).

At trial, the plaintiff testified that she was unaware that the testator had executed the codicil until the two shared a conversation on their honeymoon. When counsel for the plaintiff inquired further as to the conversation, counsel for the defendant objected and the jury was excused.⁴ The plaintiff made the following offer of proof:

"[The Plaintiff's Counsel]: Could you... tell the court what the conversation was with [the testator] when you found out about the codicil ... the evening after you got married? ...

"[The Plaintiff]: He said to me, I made a power of attorney to Nicole and I did a codicil to my will. And I said, how come? And he said, well, in case anything happened to me, he said, I had to give somebody the authority, and I didn't want to give it to Anne. And he said that Anne raised such holy hell about making a codicil that I had to make the codicil. He said a couple of more things after that, but—

"[The Plaintiff's Counsel]: What else did he say?

"[The Plaintiff]: He said that she threatened him. She wouldn't come to the wedding. She wouldn't bring the grandchildren to the wedding. She was never going to see him again. She wouldn't let the grandchildren have any contact with him or see him. She wouldn't give him the papers that he needed because there was a problem at the [convalescent home the testator owned]. The state was investigating and the state's attorney's office was getting involved.

"[The Plaintiff's Counsel]: She had records of his?

"[The Plaintiff]: Yes, she did.

"[The Plaintiff's Counsel]: And she said she wouldn't—and he told you that she told him that she wouldn't give him the records?

"[The Plaintiff]: That's right. And [the testator's attorney] had problems getting the documents from her that were needed to protect [the convalescent home] from payback to the state of Connecticut for the problems that she [Patten] had created....

"[The Plaintiff's Counsel]: This was told to you on Sunday night?

"[The Plaintiff]: Sunday night."

The defendant objected on several grounds, arguing that the testator's statements were inadmissible under Dale's Appeal from Probate, 57 Conn. 127, 140, 17 A. 757 (1888), the dead man's statute; General Statutes § 52-172;⁵ and because they constituted hearsay within hearsay.⁶ The plaintiff responded that the testator's statements were being offered not for the truth of the matter asserted therein, but as proof of the testator's state of mind when he executed the codicil several days before making the statements.

The court excluded as inadmissible hearsay the portion of the plaintiff's testimony reporting the testator's statement regarding Patten's threats, concluding that the testator was not relating his state of mind, but rather, a conversation. In so doing, the court relied on Vivian's Appeal, 74 Conn. 257, 50 A. 797 (1901), which similarly concerned the exclusion of hearsay declarations by the testator regarding the exertion of undue influence. Our Supreme Court stated that "[e]vidence was properly excluded of declarations of the testator as to how he came to make the will; that it was made under constraint proceeding from his wife; and that in certain other matters he had acted under her domination. They were mere hearsay." Id., at 260-61, 50 A. 797. The court also excluded the testimony on the basis of the rule of Dale's Appeal from Probate, supra, 57 Conn. at 140, 17 A. 757, and its progeny, which excludes from evidence the admissions against interest of one legatee that might affect adversely the interests of other legatees. See Carpenter's Appeal, 74 Conn. 431, 434, 51 A. 126 (1902); Livingston's Appeal from Probate, 63 Conn. 68, 76, 26 A. 470 (1893). The court in the present case relied on the dead man's statute and the nonhearsay use of "state of mind" in allowing the plaintiff to testify about a significant portion of her conversation with the testator.

After the jury returned, the plaintiff was allowed to testify as follows regarding the conversation she had with the testator:

"[The Plaintiff's Counsel]: Did [the testator] say he had a conversation with [Patten]?

"[The Plaintiff]: Yes.

* * *

"[The Plaintiff's Counsel]: Did he say how he felt or what he feared or anything of that nature as a result of these conversations with [Patten]?

"[The Plaintiff]: He was afraid that she would — he would not see her, he would not see his grandchildren, she would not give him the documents that he needed because the state was investigating [the convalescent home] .... He was frightened and he said [that] that's what he was...