Nardo v. Nardo

Citation8 Storey 400,58 Del. 400,209 A.2d 905
Parties, 58 Del. 400 Daniel F. NARDO, William V. Nardo, William J. Nardo and Nicola Nardo, a minor, by his father and natural guardian, Fiore A. Nardo, Contestants Below, Appellants, v. Josephine C. NARDO, Proponent Below, Appellee.
Decision Date20 April 1965
CourtUnited States State Supreme Court of Delaware

On appeal from judgment of the Orphans' Court of New Castle County reversing decision of the Register of Wills for New Castle County.

James P. D'Angelo and Stanley T. Czajkowski, Wilmington, and Paul R. Connolly, of Hogan & Hartson, Washington, D. C., for contestants below, appellants.

Thomas H. Wingate, Wilmington, for proponent below, appellee.

WOLCOTT, C. J., and CAREY and HERRMANN, JJ., sitting.

HERRMANN, Justice:

This is a will contest case which requires us to determine the scope of review (1) by the Orphans' Court on an appeal from the Register's Court and (2) by the Supreme Court on a further appeal from the Orphans' Court.

Viewed in the light most favorable to the contestants below, appellants, the relevant facts are these:

Anna Maria Nardo died on November 11, 1961 leaving a will dated January 6, 1960. The will was admitted to probate by the Register of Wills of New Castle County. Under that will, the testatrix left her entire estate outright, except for a $1,000. bequest, to Josephine C. Nardo, a niece of her husband. A petition for review was filed in the Register's Court under 12 Del.C. § 1310 by certain nephews of Anna's husband, alleging that the will resulted from undue influence exerted by Josephine and her brother Frank Nardo. After hearing on the petition for review, without opinion or findings of fact, the Register revoked the grant of letters testamentary on the ground that the will was the product of such undue influence. Josephine appealed to the Orphans' Court under Del.Const. Art. 4, § 31, Del.C.Ann. 1 On the appeal, the matter was heard on the record, as provided by Orphans' Court Rule 178(d), Del.C.Ann. 2 The Orphans' Court concluded that the contestants had failed to prove undue influence. It reversed the Register's Court and remanded the cause with instructions to dismiss the petition for review and to readmit the will to probate. The contestants appeal under Del.Const. Art. 4, § 11(5).

Anna was about 65 years old when she died. She was foreign born and had difficulty with the English language. She and her husband conducted a retail liquor business and, for about 22 years before Anna's death, Josephine lived with them. She assisted in the operation of the business and received compensation therefor. Anna's husband was blind and Anna could neither read nor write. Anna's husband died in the latter part of 1958. There were no children of the marriage and Anna's family consisted principally of nieces and nephews and their children.

In April 1959, Anna had executed a trust agreement and a different will. These documents were prepared by an attorney to whom she was taken by certain nieces and nephews shortly after her husband's death. Under these instruments, after specific bequests to children of nephews totaling $24,000., a life interest was created for Josephine and, upon her death, the trust was to terminate and the corpus divided between nephews William V. Nardo and Frank Nardo and their heirs. When these documents were executed, because Anna had difficulty with the English language, the attorney called in an Italianspeaking member of the Bar who explained the papers to Anna. She executed both instruments by her mark.

Josephine learned of the testamentary plan under the 1959 will. She was very unhappy about the arrangements made thereby and so stated to Anna on many occasions. Josephine insisted that the 1959 testamentary plan was a breach of the expressed promises and wishes of Anna's husband and, in effect, was a breach of faith with him. Josephine was persistent and nagged Anna on the subject during the remainder of the year 1959.

Josephine occupied a very close relationship with Anna after the death of the latter's husband. They shared the same bedroom and Josephine was Anna's closest confidant. During this period, Josephine assumed a greater part of the management of the business. Anna was deeply grieved by the loss of her husband and dreamed of him frequently. On several occasions, Josephine and her sharing in the estate also figured in the dreams.

In January 1960, Anna was hospitalized for a jaundice condition and diagnostic surgery was prescribed. A day or two before the operation, the will here in contest, together with a revocation of the trust agreement, were executed in the hospital. These instruments were prepared by another attorney, now the attorney for the proponent herein, whose secretary was a friend of Anna. Anna's physician was called in to certify to her competency. While the new will was being executed, the attorney and his secretary were present. One of the contestants was barred from the hospital room but Josephine and her brother remained. The secretary's husband, a police detective, was also present.

The subsequent surgery disclosed an irremediable cancer condition. After her release from the hospital, Anna lived with Josephine and Frank in a new home purchased by Anna. Other relatives were dicouraged from communicating with her; telephone calls were monitored and either Josephine or Frank was present during visits. When Anna returned to the hospital during her terminal illness, Josephine or Frank remained at her bedside and other relatives were barred.

The disposition of this appeal requires the resolution of (1) the contestants' contentions as to the propriety of the type of review accorded the case by the Orphans' Court; (2) the question of the scope of review to be exercised by this court in this type of appeal; and (3) the contestants' contentions that the Orphans' Court misconceived the law as stated in Conner v. Brown, 9 W.W.Harr. 529, 3 A.2d 64 (1938), the last major pronouncement in this State on the subject of undue influence, and misapplied the law to the facts of this case.

The Scope of Review in the Orphans' Court

The Orphans' Court conceived its appellate function in this case to be a determination of 'whether or not there is evidence upon which the order of the Register of Wills could reasonably be based', concluding that if 'the record meets this test, the order of the Register of Wills must be affirmed.'

The contestants argue that the Orphans' Court failed to conform to the rule it stated to be governing in that it analyzed, weighed, and re-evaluated the evidence heard by the Register and drew its own inferences therefrom. It is contended by the contestants that, in effect, the Orphans' Court made new findings as though its function was to hold a trial de novo rather than to test the record for the existence of any evidence to support the Register's decision. The contestants' argument amounts to the proposition that the criteria of a review by the Orphans' Court on appeal from the Register's Court are the same as those employed in the review of a jury case by this court. Compare Del.Const. Art. 4, § 11(1)(a).

It appears that the Orphans' Court mistated the nature and scope of review it undertakes in an appeal from the Register's Court. The source of its error becomes manifest in its citation of In re Delaware Sports Service, Storey, 196 A.2d 215 (1963), which was an appeal from the State Public Service Commission to the Superior Court; and Hartley v. Creed, Del., 196 A.2d 224 (1963) and Turner v. Vineyard, 7 Terry 138, 80 A.2d 177 (1952), which were appeals to this Court from the Superior Court in non-jury cases.

We must look to a different line of cases for a determination of the proper function of the Orphans' Court in an appeal from the Register's Court. Such appeals were heard by the Superior Court prior to the constitutional Amendment of 1951 reorganizing the State courts. See 48 Del.Laws, Chapter 109. Presently, Del.Const Art. 4, § 31 provides: 'Appeals may be taken from a Register's Court to the Orphans' Court.' Until 1951, the predecessor of § 31 was Del.Const. Art. 4, Sec. 33 which provided: 'Appeals may be taken from a Register's Court to the Superior Court, whose decision shall be final.' The evolution of § 31 makes it clear, we think, that it was the legislative intent to transfer to the Orphans' Court the precise appellate jurisdiction theretofore exercised by the Superior Court excepting, of course, the omitted finality of decision and the provision for further appeal to this court.

The probate system, then composed of the Register's Court as the court of first instance and the Superior Court on appeal therefrom, originated in our Constitution of 1792, Art. VI, Sec. 17 of which provided: 'Appeals may be made from a register's court to the supreme court, whose decision shall be final.' The language of that Constitution was carried forward into the Constitution of 1831 (Art. VI, Sec. 22) except for the substitution of the Superior Court on the appeal for the earlier Supreme Court whose jurisdiction and powers were merged in the former. The Constitution of 1897 (Art. 4, Sec. 33) contained substantially the same provision until the Amendment of 1951 substituted the Orphans' Court for the Superior Court on the appeal.

What, then, was the scope of review as exercised by the Superior Court prior to 1951 on appeals from the Register's Court?

In Cummins, et al. v. Cummins, et al., 1 Marvel 423, 439-440, 31 A. 816, 819 (1895), there was disagreement on the question. Chief Justice Lore was of the opinion that the cause was not to be heard de novo on appeal from the Register and that the Superior Court did not have the power to refer an issue to a jury, saying, however, that '* * * in appeals from the register our courts have quite uniformly decided both the law and fact, without reference to a jury'; and that '* * * in contested cases, the register of wills hears all the evidence, takes the same at...

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