In re Estate of Cote, 2004 VT 17 (Vt. 2/13/2004)

• Decision Date: 13 February 2004
• Docket Number: No. 2003-025, October Term, 2003,2003-025, October Term, 2003
• Citation: 2004 VT 17
• Parties: In re Estate of Gerald Thomas Cote (Teresa Cooper, Appellant)
• Court: Vermont Supreme Court

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2004 VT 17

In re Estate of Gerald Thomas Cote (Teresa Cooper, Appellant)

No. 2003-025, October Term, 2003

Supreme Court of Vermont

February 13, 2004

On Appeal from Franklin Superior Court, Dennis R. Pearson, J.

Deborah T. Bucknam, St. Johnsbury, for Appellant.

Janet L. Franklin of Law Office of David H. Perrin, Fairfax, for Appellee.

PRESENT: Amestoy, C.J., Dooley, Johnson, Skoglund and Reiber, JJ.

AMESTOY, C.J.

¶ 1. Appellant Teresa Cooper seeks reversal of the Franklin Superior Court's order affirming the Franklin Probate Court's disallowance of her deceased fiancé's nuncupative will. We affirm.

¶ 2. The Superior Court disposed of appellant's claims by summary judgment; we therefore employ the same standard on appeal. Mellin v. Flood Brook Union Sch. Dist., 173 Vt. 202, 211, 790 A.2d 408, 417 (2001). If no genuine issue of material fact exists, and any party is entitled to judgment as a matter of law, the court may properly enter summary judgment. V.R.C.P. 56(c). The relevant undisputed facts are as follows.

¶ 3. In July 1998, the decedent Gerald Thomas Cote executed a will disposing of his property that conforms to statutory requirements. See 14 V.S.A. § 5 (will must have signature of three witnesses who sign in presence of each other and testator). After Cote's wife died, he reestablished a relationship he had with appellant many years earlier. Eventually, Cote gave appellant a diamond ring, and they planned to marry.

¶ 4. In December 2000, Cote wrote and signed a handwritten will while he sat alone at appellant's kitchen table. He brought the document to Edna Sauvigney, appellant's mother, and declared to her that it was his will and that he wanted appellant "to be taken care of" after he died. Sauvigney signed the will. Cote gave it her, along with the key to his safety deposit box. He asked Ms. Sauvigney to keep the will safe and to deliver it to appellant if anything happened to him. In September 2001, without having married appellant, Cote died. At the time of his death, Cote's personal property was worth well over $200.

¶ 5. The present dispute arose when appellant filed the December 2000 will with the probate court following Cote's death. The probate court disallowed the December 2000 document, and concluded that Cote's 1998 will was valid as his last will and testament. Appellant appealed to the superior court, and now to this Court, claiming the December 2000 will is a valid nuncupative will, or in the alternative, it is a valid holographic will. She argues that because the December 2000 will is valid and supersedes Cote's original 1998 will, the probate court should have allowed it and not the earlier will. We disagree.

¶ 6. Whether the December 2000 document is a valid will depends on its conformance to Vermont's nuncupative will statute. The statute provides:

A nuncupative will shall not pass personal estate when the estate thereby bequeathed exceeds the value of $200.00, nor shall such will be proved and allowed, unless a memorandum thereof is made in writing by a person present at the time of making such will, within six days from the making of it, nor unless it is presented for probate within six months from the death of the testator.

14 V.S.A. § 6.

¶ 7. Appellant claims that 14 V.S.A. § 6 unambiguously allows a nuncupative will to pass an estate in excess of $200 as long as it is put in writing within six days and presented to probate within six months. Appellant argues that, according to an exception to the "last antecedent rule," the presence of the comma before the word "unless" requires that the clause "unless a memorandum thereof is made in writing . . ." modify not just the immediately preceding phrase, but also the first clause. Appellant thus suggests that the statute provides: "A nuncupative will shall not pass personal estate when the estate thereby bequeathed exceeds the value of $200.00 unless a memorandum thereof is made . . . nor unless it is presented for probate within six months . . . ." To construe the statute otherwise, appellant argues, renders the clause beginning with "unless" superfluous.

¶ 8. Under appellant's reading of the statute, Cote's nuncupative will is valid even though his personal estate is worth more than $200 because it substantially conforms to the statute's requirements for proof and admission. The will was written and affirmed in the presence of a witness, Sauvigney, and appellant filed it within six months of Cote's death.

¶ 9. The superior court found, however, that the statute was not ambiguous "when its words are given their plain and ordinary meaning, particularly in light of the readily evident intent of the Legislature." The court interpreted § 6 as allowing a nuncupative will to be effective only when all the conditions are met: (1) the will must relate to personal property; (2) the personal property must be worth no more than $200; (3) someone present when the testator made the will must prepare a memorandum of it within six days; and (4) the probate court must receive the memorandum within six months of the testator's death. Under the superior court's interpretation, the statute does not apply to Cote's will, since Cote's estate does not meet the $200 limitation requirement.

¶ 10. When interpreting a statute, our principal objective is to implement legislative intent. State v. Read, 165 Vt. 141, 147, 680 A.2d 944, 948 (1996). Where legislative intent can be ascertained on its face, the statute must be enforced according to its terms without resort to statutory construction. Derosia v. Book Press, Inc., 148 Vt. 217, 222, 531 A.2d 905, 908 (1987). Here, however, both parties' interpretations are plausible, and therefore we must ascertain legislative intent through consideration of the entire statute, including its subject matter, effects and consequences, as well as the reason and spirit of the law. See Paquette v. Paquette, 146 Vt. 83, 86, 499 A.2d 23, 26 (1985). All relevant parts of the applicable statutory scheme are to be construed together to create, if possible, a harmonious whole. See Holmberg v. Brent, 161 Vt. 153, 155, 636 A.2d 333, 335 (1993).

¶ 11. Vermont's nuncupative will statute is one of three statutes dealing with the creation of testamentary instruments. Those provisions can and should be construed in harmony with each other. See Munson v. City of S. Burlington, 162 Vt. 506, 509, 648 A.2d 867, 869 (1994) ("[S]tatutes relating to the same subject matter should be construed together and read in pari materia, if at all possible."). When 14 V.S.A. § 6 is read in context with the other two statutes, its purpose becomes apparent. Section 5 establishes the general requisites for a valid will: in order to pass any real or personal estate, a will must be in writing, signed by the testator, and witnessed by three individuals. The obvious purpose of such provisions is to supply ample evidence of the decedent's testamentary intent and capacity and to prevent fraud.

¶ 12. Sections 6 and 7, as exceptions to the general requisites for proper execution, must be of more limited application than the general rule. Section 7 allows individuals in the military to create soldier's wills in order to bequeath wages and personal property when they are engaged in "actual military service," i.e., when the circumstances may make compliance with formal execution and probate requirements difficult, if not impossible. Significantly, this provision, unlike § 6, does not limit the size of the personal estate that can be passed. As the superior court noted, "the additional restrictions and limitations included in § 6, as to nuncupative wills generally, must be accorded their evident purpose, as the Legislature was (and remains) obviously capable of providing for more liberal allowance of oral wills if that is the lawmakers' choice." That "evident purpose" is to provide an alternative, less formal testamentary instrument for small bequests only.

¶ 13. If we interpreted § 6, as appellant urges, to permit an oral will to pass estates of any size, the safeguards against fraud provided by § 5 would be easily defeated, rendering the section superfluous. Because we presume that legislative language is inserted advisedly and not intended to create surplusage, Payea v. Howard Bank, 164 Vt. 106, 107, 663 A.2d 937, 938 (1995), we decline to construe 14 V.S.A. § 6 in this manner.

¶ 14. Under appellant's interpretation of the statute the possibilities of fraudulent claims against wealthy estates would be great. Since § 6 does not even require the testator's signature for the will to be proved, alleged beneficiaries of estates with significant assets would be able to contest a duly executed will by presenting a purported nuncupative will, delaying the probate process and forcing the courts to engage in extensive factfinding to determine the validity of the claim. It is difficult to believe that the Legislature intended to impose detailed evidentiary requisites under 14 V.S.A. § 5, only to defeat them by allowing such lax standards for the execution of nuncupative wills, which can be proved only through prolonged hearings. We presume that "the Legislature did not intend an interpretation that would lead to absurd or irrational consequences." Braun v. Bd. of Dental Exam'rs, 167 Vt. 110, 117, 702 A.2d 124, 128 (1997).

¶ 15. We note that although no real property was at issue in this dispute, the probate court construed § 6 to limit...