Ryan v. Estate of Ryan, K.P. 08-752

CourtSuperior Court of Rhode Island
Docket NumberK.P. 08-752
Decision Date28 May 2009



K.P. No. 08-752

Superior Court of Rhode Island

May 28, 2009


This case came on for consideration on an appeal from the Probate Court of the Town of Coventry. The parties differ on their interpretation of a Will. The parties agreed that this appeal contained no issues of fact, waived a jury trial, and submitted the issues to the Court for determination of the law and interpretation of the Will. The parties have submitted memoranda.

Facts and Travel

Ernest J. Ryan, Jr. executed a Last Will and Testament in May, 1999. He passed away on August 4, 2006. An Estate was filed and the Probate Court admitted the Will to probate in May, 2007. Mr. Ryan had three surviving children: Katherine Ryan, Alan J. Ryan and Debra J. Ayala.

Articles Three and Four of the Will make specific bequests. The Will then states in part:

FIFTH: I give and bequeath all of my remaining tangible personal property that I may own at the time of my death to my children, DEBRA JEANNE AYALA and ALAN JAMES RYAN, to be divided among them by my Executor, in his sole discretion, in as nearly equal proportions as may be practical
SIXTH: All the rest, residue and remainder of my property, real, personal and mixed, wheresoever located, including my home at 11 Fairmont Street, West Warwick, Rhode Island, I give, devise and bequeath said rest, residue and remainder in equal shares to my children living at the time of my death; provided however, if any of my children shall have such issue living at the time of my death, per stirpes, the share to which said deceased child would have been entitled if said deceased child had survived me
SEVENTH: I have intentionally omitted any provision hereunder for my daughter, KATHERINE RYAN, not because of any lack of affection for her, but because she is otherwise well provided for

In November, 2007, Ms. Ryan petitioned the Probate Court to construe Article Six as a class gift wherein she would be entitled to receive. The Probate Court denied her request, finding that Article Sixth provided for distributions to Alan Ryan and Debra Ayala only. Katherine Ryan appealed.


On a probate appeal, this Court considers all issues de novo. "An appeal under this chapter is not an appeal on error but is to be heard de novo in the superior court." G.L. 1956 § 33-23-1 (d). "[T]he Superior Court is not a court of review of assigned errors of the probate judge, but is rather a court for retrial of the case de novo ." In re Estate of Paroda, 845 A.2d 1012, 1017 (R.I. 2004).

Our High Court has stated:

This court's "primary objective when construing language in a will or trust is to ascertain and effectuate the intent of the testator or settlor as long as that intent is not contrary to law." Prince v. Roberts, 436 A.2d 1078, 1080 (R.I. 1981); see also Fleet National Bank v Miglietta, 602 A.2d 544, 549 (R.I. 1992). "Where the language of a will expressly states the testator's intention, resort to the rules of testamentary construction is without warrant; it is when the language under consideration is susceptible of being read as disclosing alternate or contrary intentions that the rules of construction properly may be invoked." Goldstein v. Goldstein, 104 R.I. 284, 287, 243 A.2d 914, 916 (1968); see also Lancellotti v. Lancellotti, 119 R.I. 184, 191-92, 377 A.2d 1315, 1319 (1977). In re DiBiasio 705 A.2d 972, 973-4 (R.I., 1998).

Hence this...

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