Gardner v. Balboni, 14162

• Decision Date: 26 March 1991
• Docket Number: No. 14162,14162
• Court: Connecticut Supreme Court
• Parties: Rexford GARDNER et al. v. Dorothy BALBONI, Administratrix (ESTATE of Clara GARDNER), et al. Bertha MASERA et al. v. Dorothy BALBONI, Administratrix (ESTATE of Clara GARDNER), et al.

Page 634

588 A.2d 634

218 Conn. 220

Rexford GARDNER et al. v. Dorothy BALBONI, Administratrix (ESTATE of Clara GARDNER), et al.

Bertha MASERA et al. v. Dorothy BALBONI, Administratrix (ESTATE of Clara GARDNER), et al.

No. 14162.

Supreme Court of Connecticut.

Argued Jan. 18, 1991.

Decided March 26, 1991.

Michael S. Schenker, Hartford, and Kevin Deneen, Windsor, for appellants (plaintiffs).

Pamela J. Norley, with whom, on the brief, was James K. Robertson, Jr., Waterbury, for appellee (defendant Damon Runyon-Walter Winchell Cancer Fund).

Before SHEA, GLASS, COVELLO, BORDEN and F.X. HENNESSY, JJ.

SHEA, Associate Justice.

The appellants, Rexford Gardner, Bertha Masera, Dorothy Dowd and Wanda DiGiacomo (hereinafter plaintiffs), are the heirs at law (first cousins) of the decedent Clara Gardner. The appellee, Damon Runyon-Walter Winchell Cancer Fund (hereinafter proponent), would be the primary beneficiary of Gardner's estate if a document purporting to be her will is admitted to probate. The document, prepared apparently without advice of counsel, contains irregularities. The plaintiffs claim there was insufficient evidence that the will's execution met statutory requirements to outweigh the negative inference raised by the will's irregularities. We hold, however, that because statements in an attestation clause signed by deceased witnesses are admissible to prove due execution of a will, there was sufficient evidence for the trial court to admit the will to probate.

The trial court found the following facts. Clara Gardner died on November 26, 1985. The Probate Court appointed Dorothy Balboni as the administratrix of her estate. ¹ On January 17, 1986, Balboni, her husband, detective Thomas Murkowicz and attorney William Leary conducted a search of Gardner's apartment. Murkowicz found a document purporting to be Gardner's will in a cardboard box containing insurance and pension papers. This document was offered for probate on February 4, 1986, by the Damon Runyon-Walter Winchell Cancer Fund, the residuary beneficiary named in the document. ² After a hearing, the Probate Court admitted the will to probate on June 12, 1987. Gardner's heirs at law, Rexford Gardner, Wanda DiGiacomo, Dorothy Dowd ³ and Bertha Masera filed two separate appeals from probate, later consolidated and heard as companion cases. If the will is admitted to probate, the heirs at law receive almost nothing; ⁴ the total value of the estate is estimated at $325,000. ⁵

The trial court described the relevant portions of the purported will in part as follows. ⁶ "This document is typewritten on a standard [Cleaveland] Legal Blank will form which consists of four pages on one sheet of paper folded at the center.... The first page of the document contains the dispositive clauses. The second page, i.e., the back of the first page, is blank. The third page contains the printed format for the appointment of the Executor, the execution by the Testatrix, the attestation clause and a self-proving affidavit with provision for typing of the names of the witnesses, a place for their signatures and a place for an affidavit to be taken by another person.

"In the appointment clause the blanks are properly filled in and the Testatrix has appointed her cousin, Mrs. Dorothy Dowd from the town of Windsor Locks, Connecticut, County of Hartford, Connecticut, Executrix.

"The next printed section is the execution clause, i.e., that which begins with 'IN WITNESS WHEREOF', in heavy type followed in lower case print by 'I have hereunto set my hand and seal at said (blank) on the (blank) day of (blank) A.D., One Thousand, Nine Hundred and (blank).' Below this is a dotted line for signature, with the word SEAL in brackets, i.e., [SEAL]. None of the blanks in this section have been filled in nor does it contain the signature of Clara Gardner.

"In the attestation clause which contains the usual language, 'Signed, Sealed, Published and Declared by the said (blank) as and for her Last Will and Testament, in the presence of us, who at her request, in her presence, and in the presence of each other have hereunto subscribed our names as witnesses, on the 31st day of July A.D. 1956,' the name of the Testatrix has not been typed in. However, the blanks have been typed in with the word 'her' before Last Will and Testament and before request and before presence and also the date, '31st', 'July', '56'. Under the label 'Witnesses' appear three handwritten signatures in blue ink, and under 'Addresses', opposite each name, is a handwritten address.

"The heading of the self-proving affidavit containing the county and the date of July 31st, A.D. 1956, has been filled in. However, the spaces where the names of the witnesses would normally appear have not been filled in, but each of the pronouns, the suffix 'trix' and the date, 31st day of July 1956 which appear in the text of the affidavit, have been filled in with a typewriter. Under this affidavit appear three dotted lines on which, normally, the signature of the witnesses would appear. On the uppermost of these three lines appears the name, handwritten in blue ink, 'Clara Gardner.' The last portion of the self-proving affidavit, that which contains the notarization, is completely blank.

"To sum up, the section for the execution of the will by the Testatrix is blank. In the attestation clause, where the name of the Testatrix would normally have been typed in, it is blank. The balance of the attestation clause, however, has been filled in with the correct pronouns, dated and three signatures. The dates of the self-providing affidavit and suffix 'trix' and the pronouns have been filled in and the signature 'Clara Gardner' appears where the names of the witnesses would normally be typed in.

"The fourth page of this document which contains some printed matter identifying the document with provision for dates and the date admitted to Probate, etc., has been left blank."

I

An appeal from probate is not so much an "appeal" as a trial de novo with the Superior Court sitting as a Probate Court and restricted by a Probate Court's jurisdictional limitations. Kerin v. Stangle, 209 Conn. 260, 264, 550 A.2d 1069 (1988); Baskin's Appeal from Probate, 194 Conn. 635, 641, 484 A.2d 934 (1984); Prince v. Sheffield, 158 Conn. 286, 298, 259 A.2d 621 (1969); see D'Agostino v. Amarante, 172 Conn. 529, 530, 375 A.2d 1013 (1972). Although the Superior Court may not consider events transpiring after the Probate Court hearing; Satti v. Rago, 186 Conn. 360, 369, 441 A.2d 615 (1982); it may receive evidence that could have been offered in the Probate Court, whether or not it actually was offered. See Baskin's Appeal from Probate, supra; Stevens' Appeal, 157 Conn. 576, 581, 255 A.2d 632 (1969).

At the trial de novo, a will's proponent retains the burden of proving, by a preponderance of the evidence, that the will was executed in the manner required by statute. D'Agostino v. Amarante, supra; Wheat v. Wheat, 156 Conn. 575, 581-82, 244 A.2d 359 (1968). The proponent must prove anew that the will's execution was in compliance with the statute in effect at the time it was executed. ⁷ Lane's Appeal from Probate, 57 Conn. 182, 187-88, 17 A. 926 (1889). To be valid, Gardner's will must comply strictly with the requirements of this statute. Wheat v. Wheat, supra, 156 Conn. at 580, 244 A.2d 359. Because the offer for probate of a putative will is in essence a proceeding in rem the object of which is a decree establishing a will's validity against all the world; Estate of Neubauer, 49 Cal.2d 740, 745, 321 P.2d 741 (1958); State v. McGlynn, 20 Cal. 233, 240 (1862); Barrette v. Whitney, 36 Utah 574, 581, 106 P. 522 (1909); Will of Dardis, 135 Wis. 457, 461, 115 N.W. 332 (1908); see also Fortune v. Buck, 23 Conn. 1, 8 (1854); the proponent must at least make out a prima facie case that all statutory criteria have been satisfied even when compliance with those criteria has not been contested. Berkeley v. Berkeley, 152 Conn. 398, 401, 207 A.2d 579 (1965).

Our task, then, in reviewing the judgment below, is to determine whether there was sufficient factual evidence to support the trial court's conclusion that the will was executed in strict compliance with the statutory requirements, and whether the trial court applied the law correctly in reaching that conclusion.

II

In 1956, § 6951 of the General Statutes, now renumbered § 45a-251, provided in pertinent part: "No will or codicil shall be valid to pass any estate unless it be in writing, subscribed by the testator and attested by three witnesses, each of them subscribing in his presence...." General Statutes (1949 Rev.) § 6951. Unquestionably, the purported will was in writing. The plaintiffs challenge first, therefore, the trial court's conclusion that the purported will had been "subscribed by" the testatrix. The plaintiffs contend that because Clara Gardner signed the will below the unsigned self-proving affidavit, instead of signing it immediately below the execution clause, she did not "subscribe" the will as required by the statute.

The requirement that the testator "subscribe" the will means that it must be "signed at the end" by the testator. Wheat v. Wheat, supra, 156 Conn. at 581, 244 A.2d 359. There was ample evidence at trial to support the trial court's conclusion that the signature was indeed Clara Gardner's, and the plaintiffs do not challenge the signature's authenticity. They claim instead that she did not sign at the end of her will, but rather after the end of her will, because the signature appears after the self-proving affidavit and attestation clauses, technically not parts of her will. The plaintiffs cite several cases from other states in support of this proposition. Sears v. Sears, 77 Ohio St. 104, 82 N.E. 1067 (1907); Weiss Estate, 444 Pa. 126, 279 A.2d 189 (1972); In re Churchill's Estate, 260 Pa. 94, 103 A. 533 (1918); Orrell v. Cochran, 695 S.W.2d 552 (Tex.1958).

While ...