Frogate v. Kissell, 347-78
| Decision Date | 06 February 1980 |
| Docket Number | No. 347-78,347-78 |
| Citation | 138 Vt. 167,412 A.2d 1138 |
| Parties | Lita M. FROGATE v. Tony F. KISSELL, as Executor Under Last Will and Testament of Herman L. Cowing, William Keveney, Brian Keveney, Christopher C. McGrath, Administrator c.t.a. for the Estate of Elinor M. Keveney, Alan G. Thompson, Administrator c.t.a. for the Estate of Clarence A. Roberts. |
| Court | Vermont Supreme Court |
John H. Carnahan, of Fitts & Olson, Brattleboro, for plaintiff.
Weber, Perra & Gibson, Brattleboro, for Kissell.
Timothy J. O'Connor, Jr., Brattleboro, for Keveneys and McGrath.
Before BARNEY, C. J., DALEY, BILLINGS and HILL, JJ., and SPRINGER, District Judge, specially assigned.
Plaintiff appeals from the entry of a judgment denying the enforcement of an alleged oral inter vivos trust. She purported to establish that the trust was created in 1938 by her father, Clarence A. Roberts, and his sister, Ethel Roberts, when they arranged for the purchase of 83 shares of the common stock of the American Telephone and Telegraph Company to be held by their sister, Mildred I. (Roberts) Cowing, during her lifetime, and upon her death to revert to the "Roberts family or the heirs thereof."
The factual background of the controversy is quite complicated, involving stock splits, the creation of joint tenancies, unexpected deaths, and agreements to bequeath, and it would serve no useful purpose to set it out in detail. Where pertinent to plaintiff's arguments, the necessary background is provided.
Plaintiff raises two grounds of error. First, she asserts that the trial court erred when it excluded certain evidence on the ground of hearsay and under the Vermont Dead Man's Statute. 12 V.S.A. § 1602. Second, she claims that the trial court's finding of fact that the American Telephone and Telegraph Company stock was given to Mildred I. (Roberts) Cowing solely by Ethel Roberts was contrary to the evidence. We disagree, and affirm.
Even assuming that the exclusionary ruling challenged in plaintiff's first alleged ground of error was erroneous, it will not result in reversal unless plaintiff can demonstrate that the claimed error was prejudicial and injured her rights. Monti v. Town of Northfield, 135 Vt. 97, 99, 369 A.2d 1373, 1375 (1977); Green Mountain Marble Co. v. State Highway Board, 130 Vt. 455, 468, 296 A.2d 198, 206 (1972).
Based on our examination of the record, plaintiff failed to make the necessary showing. The information contained in the document that plaintiff sought to introduce, but which was excluded, was substantially the same as the information contained in a second document that was admitted. The excluded document, in pertinent part, provided:
Several years ago the Roberts family . . . turned over to Mildred I. Roberts . . . a sum of money sufficient to purchase eighty-three (83) shares of the Common Stock of the American Telephone and Telegraph Company. Said stock was purchased. At the time Mildred I. Roberts was unmarried and legally competent. There was an understanding, however, that, while title to the stock would remain in the name of Mildred I. Roberts and that she would receive the dividends therefrom during the term of her natural life, upon her demise the stock would revert to the Roberts family or the heirs thereof.
The admitted writing stated:
(O)n an earlier date a certain Roberts family turned over to Mildred I. Cowing, wife of Herman L. Cowing, a sum of money sufficient to purchase eighty-three (83) shares of Common Stock of the American Telephone and Telegraph Company which said stock was purchased in the name of Mildred I. Cowing with the understanding, however, that title would remain in her...
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Estate of Laitinen
...reversal unless [appellants] can demonstrate that the claimed error was prejudicial and injured [their] rights." Frogate v. Kissell, 138 Vt. 167, 168, 412 A.2d 1138, 1139 (1980) (citing Monti v. Town of Northfield, 135 Vt. 97, 99, 369 A.2d 1373, 1375 (1977)); Green Mountain Marble Co. v. St......
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...account the weight of the evidence, the credibility of witnesses, and the persuasive effect of the testimony." Frogate v. Kissell, 138 Vt. 167, 169, 412 A.2d 1138, 1140 (1980). When findings are challenged on appeal, our role is limited to determining if they are "fairly and reasonably supp......
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Messier v. Messier, 116-81
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