Millman v. Millman

• Decision Date: 11 May 1976
• Citation: 359 A.2d 158
• Parties: Harold C. MILLMAN et al., Petitioners-below-Appellants, v. Edward Preston MILLMAN et al., Respondents-below-Appellees.
• Court: Supreme Court of Delaware

Page 158

359 A.2d 158

Harold C. MILLMAN et al., Petitioners-below-Appellants, v. Edward Preston MILLMAN et al., Respondents-below-Appellees.

Supreme Court of Delaware.

Submitted March 10, 1976.

Decided April 27, 1976.

Motion for Reargument Denied May 11, 1976.

Upon appeal and motion to dismiss appeal from Superior Court. reversed.

Robert L. Halbrook and Battle R. Robinson, Wilson, Halbrook & Bayard, Georgetown, for petitioners below, respondents.

James C. Sabo and Kenneth M. Millman, Georgetown, for the estate of Edward Millman, respondent below, appellee.

Randy J. Holland, Dunlap & Holland, Georgetown, for the Minor Grandchildren.

Before HERRMANN, Chief Justice, DUFFY and McNEILLY, Justices.

HERRMANN, Chief Justice.

In this will contest case, a jury trial to test the will's validity was ordered under 12 Del.C. § 1311. ¹ The contestants appeal from the Superior Court's directed verdict in favor of the proponents. Contending that an appeal to this Court as this stage is inappropriate, the proponents have moved to dismiss the appeal. On both points, we agree in result with the contestants.

I.

In 1970, Edward Millman, then eighty-six and the patriarch of a large family, met with an attorney to prepare his will. Shortly thereafter, a will was executed. In 1972, Millman died. The contestants--three of Millman's fifteen children--challenged the validity of their father's will on the ground that he was without knowledge of its true contents. ² Prior to a hearing on the Petition for Proof of Will, the Register of Wills ordered the issue submitted to a jury in the Superior Court under § 1311. At the close of the contestants' case in the jury proceeding, the proponents moved for a directed verdict. After weighing the evidence and declaring the contestants' testimony 'completely incredible', the Superior Court granted the motion for a directed verdict in order to prevent a 'sympathy verdict'.

II.

As to the motion to dismiss the appeal: proponents argue that, since the Register's referral of the will to the Superior Court for a determination of its validity did not transfer the entire case to that Court, In re Harmon's Will, Del.Super., 8 Terry 560, 95 A.2d 47 (1953); and since the Superior Court's determination is only advisory, Cummins V. Cummins, Del.Super., 1 Marv. 423, 31 A. 816 (1895), the Register's failure to rule definitively leaves no final judgment from which to appeal. They also point out that an appeal from the Register is to the Court of Chancery ³ before it can be taken to this Court.

Contestants argue, on the other hand, that the order of the Superior Court directing a verdict meets our tests for an interlocutory appeal: it raises a substantial issue (the Trial Judge's power to direct a verdict in this Devisavit vel non proceeding); and it establishes legal rights (by denying them their alleged right to a jury verdict). See, E.g., Wife M v. Husband M, Del.Supr., 346 A.2d 521 (1975); Husband C v. Wife C, Del.Supr., 320 A.2d 717 (1974); Hanby v. Maryland Casualty Co., Del.Supr., 265 A.2d 28 (1970).

In these circumstances, we hold this interlocutory appeal appropriate. In the interest of the efficient administration of justice, we will not postpone the question here presented to the stage of ultimate and apparently inevitable appeal to this Court via the circuitous route through the Register of Wills and the Court of Chancery; the substantial saving of time and expense commends this more direct approach. See DuPont v. DuPont, Del.Supr., 32 Del.Ch. 405, 82 A.2d 376 (1951).

Accordingly, the motion to dismiss the appeal is denied.

III.

In the Superior Court, contestants adduced evidence addressed to their proposition that the executed will was not the Last Will and Testament of Edward Millman because he was without knowledge of its contents. They presented the testimony of one of the will's co-executors that the testator did not know what he was signing when the will was executed, and did not intend the will as written. (Apparently, the testator could not read because of eye defects.) Additionally, evidence was presented by seven witnesses who testified that the testator intended that his estate be divided equally among his fifteen children. Therefore, the contestants argued, leaving the bulk of his estate to twelve of his fifteen children 'raises an inference that decedent did not know the contents of his will at the time of its execution', and that 'a Prima facie case (has been established) that the will is invalid * * *.'

In granting the proponents' motion for directed verdict, the Trial Judge weighed the evidence ⁴ and passed on its credibility in an attempt to prevent a 'sympathy verdict'. This was impermissible.

Generally, where 'under any reasonable view of the evidence, the jury could justifiably find in favor of the plaintiff and against the defendant', Hyman Reiver & Company v. Merlonghi, Del.Supr., 236 A.2d 367, 368 (1967), the Trial Judge may not direct a verdict. In viewing the plaintiff's case, however, the Court may not weight the evidence or pass on its credibility, as it may do at the post-trial stage to prevent injustice. Garrison v. United States, 4th Cir., 62 F.2d 41 (1932). See also Brady v. Southern Ry. Co., 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239 (1943) (courts may not weigh credibility of witnesses when considering a directed verdict motion); McCloskey v. McKelvey, Del.Super., 4 Storey 107, 174 A.2d 691, 693--94 (1961); see generally 5A Moore's Federal Practice 50.02(1) (2d ed. 1975). The rule is the same as to evidence adduced by a contestant in a § 1311 proceeding.

It is clear that this was not a case of no substantial evidence adduced by the contestants. Accordingly, the directed verdict for the proponents was reversible error.

IV.

At issue on remand will be the question of whether the longhand notes of the will's draftsman, made at his initial meeting with the testator, are admissible. The Court below refused to admit the notes on the ground that 'counterbalancing factors * * * outweigh the probative value of (the) evidence.' Contestants maintain the notes are admissible as a past recollection recorded ⁵ and 'are relevant to the issue of whether or not the purported will is in fact the will of the decedent.'

Proponents insist that the draftsman never vouched for the accuracy of the notes he made; therefore a vital requirement for admission under the past recollection recorded rule is missing. Additionally, they contend that before instructions to a draftsman are admissible, it must be shown they were not read by, nor variations from instructions explained to, the testator. Chandler v. Ferris, Del.Super., 1 Harr. 454 (1834).

We find the contestants' arguments persuasive: the tests seem to be met. It is conceded that the draftsman had firsthand knowledge of the event, but that he could not recall it. It also appears clear from the date on the memorandum that it was prepared at a time sufficiently close to the event. Finally, it is clear from the testimony of the draftsman that he considered his notes accurate, especially since he recognized the handwriting on the notes as his own. Cf. Walker v. Larson, 284 Minn. 99, 169 N.W.2d 737 (1969); ...