In re Estate of Barbara J. Cardiff ( 2022 )

January 21, 2022
Supreme Court
No. 2020-92-Appeal.
(WP 18-498)
In re Estate of Barbara J. Cardiff. :
NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
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made before the opinion is published.
Supreme Court
No. 2020-92-Appeal.
(WP 18-498)
In re Estate of Barbara J. Cardiff. :
Present: Suttell, C.J., Goldberg, Lynch Prata, and Long, JJ.
OPINION
Chief Justice Suttell, for the Court. The petitioners, Michael P. Cardiff,
Christopher M. Cardiff, Andrea L. Morgan, and Jessica L. Murray, appeal from a
Superior Court judgment affirming an order of the Westerly Probate Court admitting
the “Last Will and Testament of Barbara J. Cardiff” (the will). On appeal, the
petitioners argue that the trial justice erred in affirming the order of the probate court
because, they allege, the will did not meet the necessary formalities of G.L. 1956
§ 33-5-5.
This case came before the Supreme Court pursuant to an order directing the
parties to appear and show cause why the issues raised in this appeal should not be
summarily decided. After considering the parties’ written and oral submissions and
reviewing the record, we conclude that cause has not been shown and that this case
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may be decided without further briefing or argument. For the reasons set forth
herein, we affirm the judgment of the Superior Court.
I
Facts and Travel
The testator, Barbara Cardiff, executed the will on February 10, 2016. The
will included signatures from the testator, Christopher Fusaro, and Linda LaParle.
At the end of the will, the testator signed her name after a clause that reads:
“IN WITNESS WHEREOF, I have signed my name on this the [10 February 2016],
at Westerly, Rhode Island, declaring and publishing this instrument as my Last Will,
in the presence of the undersigned witnesses, who witnessed and subscribed this Last
Will at my request, and in my presence.”1 After the testator’s signature was the
following clause:
“SIGNED AND DECLARED by Barbara Cardiff on the
___ day of November, 2014 [sic] to be their Last Will, in
our presence, at Westerly, Rhode Island, who at their
request, in their presence and in the presence of each other,
all being present at the same time, have signed our names
as witnesses.”
Fusaro’s signature, printed name, and address, identifying him as “Witness #1[,]”
appeared on the document below the clause. The line for “Witness #2” and the
1
We note that the typed words “day of November, 2015” were crossed out, and
handwritten in was “10 February 2016[.]”
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accompanying information were left blank. The next clause in the will is entitled
“affidavit” and is followed by a notary clause, which states:
“In Westerly on this 10th day of February, 2016 before me
personally appeared the undersigned, who, being duly
sworn, depose and say that: they witnessed the execution
of the Last Will of Barbara Cardiff; that the signature to
the Last Will is in the handwriting of the Testator or was
made by some other person for the Testator, in the
Testator’s presence and by the Testator’s express
direction; that the Testator so subscribed the Last Will and
declared the same to be their Last Will in their presence;
that they thereafter subscribed the same as witnesses in the
presence of the Testator and in the presence of each other;
that at the time of execution of the Last Will the Testator
appeared to be of sound mind and eighteen (18) years of
age or over; and that the signatures of the witnesses on the
Last Will are genuine.
“Subscribed and sworn to before me on the day and date
first above written[.]”
LaParle’s signature appears on the next line above the words “Notary Public[.]” A
stamp with the words “LINDA L. LAPARLE MY COMMISSION EXPIRES” is
affixed below the signature and the date “1/17/20” is handwritten next to the stamp.
The testator passed away on May 15, 2018; and, on June 15, 2018, her niece,
respondent Amy Campbell, filed a petition for probate of will in accordance with
G.L. 1956 § 33-22-2.2 On June 19, 2018, Fusaro and LaParle each signed an
“Affidavit for Proof of Will[.]” The petitioner Michael Cardiff filed an objection to
2 Matthew L. Lewiss, Ronald M. Byington, and Anthony M. Byington are also
respondents.
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entry of will on July 11, 2018, indicating that the will was “violative of the
requirements for the execution of a [w]ill.” An order entered by the probate judge
on September 5, 2018, admitted the will to probate. On September 20, 2018,
petitioners filed a claim of appeal with the probate court and, subsequently, on
September 24, 2018, they filed a notice of complaint and appeal with the Superior
Court.
Before the Superior Court, petitioners argued that the will does not conform
with the requirements of § 33-5-5 because it was not subscribed by two witnesses;
according to petitioners, only Fusaro subscribed as a witness. The petitioners
submitted that LaParle did not subscribe as a witness, but rather as a notary public.
The trial justice issued a written decision on February 10, 2020, indicating
that “[t]he precise issue before this [c]ourt is whether an individual who signs a will
as a notary public may be a ‘witness’ in accordance with § 33-5-5.” Quoting this
Court’s precedent in Estate of Giuliano v. Giuliano, 949 A.2d 386 (R.I. 2008),
interpreting § 33-5-5, the trial justice indicated that “a valid will in Rhode Island
must be signed by the testator in the presence of two witnesses; those witnesses, in
turn, must sign the will in the presence of each other.” Estate of Giuliano, 949 A.2d
at 392.
The trial justice determined that LaParle “was in fact a witness.” She noted
that § 33-5-5 does not define the term “witness,” and quoted Black’s Law Dictionary
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for the definition that a “witness” is “[s]omeone who sees, knows, or vouches for
something.” The trial justice indicated that “[w]hether Ms. LaParle identified as a
witness or a notary public at the time she signed the [w]ill” was “irrelevant” because,
she found, such a determination “does not turn on labels.” She further found that
the will and the surrounding circumstances demonstrated compliance with § 33-5-5
because the testator, Fusaro, and LaParle all signed in each other’s presence, based
on the language in each attestation clause and the notary clause. She additionally
noted that both Fusaro and LaParle confirmed the circumstances in their respective
affidavits.
The trial justice, therefore, affirmed the order of the probate court admitting
the will to probate. Judgment entered on February 17, 2020. The petitioners filed a
timely notice of appeal to this Court on March 6, 2020.
II
Standard of Review
“We review questions of statutory interpretation de novo.” Butler v. Gavek,
245 A.3d 750, 754 (R.I. 2021) (quoting Mello v. Killeavy, 205 A.3d 454, 459 (R.I.
2019)). “It is well settled that when the statutory language is clear and unambiguous,
we give the words their plain and ordinary meaning.” Id. (quoting Bayview Loan
Servicing, LLC v. Providence Business Loan Fund, Inc., 200 A.3d 153, 157 (R.I.
2019)). However, when this Court is “faced with an ambiguous statute,” it will
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“apply the rules of statutory construction and examine the statute in its entirety to
determine the intent and purpose of the Legislature.” Crenshaw v. State, 227 A.3d
67, 71 (R.I. 2020) (quoting Powers v. Warwick Public Schools, 204 A.3d 1078, 1086
(R.I. 2019)).
III
Discussion
On appeal, petitioners argue that the trial justice erred in finding that LaParle
was a witness to the execution of the testator’s will. The crux of their argument is
that, because she signed the document in her capacity as a notary, LaParle cannot
also simultaneously be considered a witness to the testator’s execution of the will.
In support of this argument, petitioners assert that LaParle herself stated in her
affidavit that she intended to sign the document as a notary and not as a witness to
the execution of the will, and therefore, petitioners claim, her “mental act was that
of a notary to the witness’[s] signature and not as a witness to the execution of the
[w]ill by the [t]estator.” They further contend that LaParle served only “as notary
to the signature of the sole witness, Mr. Fusaro.”
In response, respondents assert that the requirements of § 33-5-5 were
satisfied because LaParle attested and subscribed the will in the presence of the
testator. The respondents argue that “LaParle’s presence and observations when [the
testator] and Fusaro signed the will relate to attestation” and that “[h]er signature on
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the instrument relates to subscription.” They submit that whether LaParle intended
to sign the will as a witness was irrelevant, because “she ‘subscribed’ the will by
signing it and ‘attested’ Mrs. Cardiff’s signature by attending the event with Fusaro
and observing what happened.”
At issue, therefore, is whether the will meets the requirements set forth in
§ 33-5-5. Section 33-5-5 provides that:
“No will shall be valid, except as provided in §§ 33-5-6
and 33-5-7, unless it shall be in writing and signed by the
testator, or by some other person for him or her in his or
her presence and by his or her express direction; and this
signature shall be made or acknowledged by the testator in
the presence of two (2) or more witnesses present at the
same time, and the witnesses shall attest and shall
subscribe the will in the presence of the testator, but no
form of attestation shall be necessary, and no other
publication shall be necessary.”
Simply put, as the trial justice here quoted in her decision, “a valid will in Rhode
Island must be signed by the testator in the presence of two witnesses; those
witnesses, in turn, must sign the will in the presence of each other.” Estate of
Giuliano, 949 A.2d at 392.
This Court addressed a similar question to the one raised in this case in Merrill
v. Boal, 47 R.I. 274, 132 A. 721 (1926). In Merrill, the testator’s signature was
witnessed by two people: “one person * * * wrote his name to the left of” the testator
“and under the words ‘in presence of[,]’” and the second person “instead of signing
as did the first, wrote the ordinary acknowledgment clause, signed his name, affixed
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his official seal, and wrote beneath his signature the words ‘Notary Public.’” Merrill,
47 R.I. at 280, 132 A. at 724. The appellees in Merrill submitted “that the second
witness, because of his taking the acknowledgment and signing as notary public, did
not attest and subscribe the will as required by section 4303, G. L. 1923.”3 Id.There, the Court considered whether “the second person signing [was] any
less a witness because he did more than was required by statute[.]” Merrill, 47 R.I.
at 280, 132 A. at 724. The Court observed that
“[t]he authorities hold that, if a person who is called upon
to witness a will attaches to the instrument his official
certificate of the maker’s acknowledgment of the due
execution thereof, such unnecessary acts are mere
surplusage and do not affect the validity of his signature
as a witness to the will.” Id. at 280-81, 132 A. at 724.
3
We note that, in Merrill v. Boal, 47 R.I. 274, 132 A. 721 (1926), the Court
considered the requirements of § 4303, G.L. 1923, which is, in essence, identical to
G.L. 1956 § 33-5-5. Section 4303 stated:
“No will shall be valid, excepting as provided in sections
twenty and thirty-six of this chapter, unless it shall be in
writing and executed in a manner hereafter prescribed; that
is to say, it shall be signed by the testator, or by some other
person for him in his presence and by his express
direction; and such signature shall be made or
acknowledged by the testator in the presence of two or
more witnesses present at the same time, and such
witnesses shall attest and shall subscribe the will in the
presence of the testator, but no form of attestation shall be
necessary, and no other publication shall be necessary.”
Section 4303, as codified in G.L. 1923, title XXIX, ch.
298, § 13.
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The Court ultimately concluded that the notary public was a witness to the execution
of the will. Id. at 281, 132 A. at 724.
We see little difference between Merrill and the case at bar. See Merrill, 47
R.I. at 280, 132 A. at 724. Signing the will in her capacity as a notary does not mean
that LaParle was not a witness; she simply went beyond what was required under
§ 33-5-5. See id. at 281, 132 A. at 724 (“It cannot be that doing more than the statute
requires, and including all the essentials of what it does require, fails for not obeying
the statute. The greater must include the less.” (quoting In Re Bybee’s Estate, 160
N.W. 900, 902 (Iowa 1917))).
In reviewing the language of the will, we note that the testator’s signature
followed: “I have signed my name * * * in the presence of the undersigned witnesses,
who witnessed and subscribed this Last Will at my request, and in my presence”;
Fusaro’s signature followed: “SIGNED AND DECLARED * * * in their presence
and in the presence of each other, all being present at the same time, have signed our
names as witnesses”; and LaParle’s signature followed: “[s]ubscribed and sworn to
before me[.]” (Emphasis added.) It is therefore clear that the testator, Fusaro, and
LaParle each signed the will in the presence of one another, thus satisfying the
“subscribe and attest” requirements of § 33-5-5. See Black’s Law Dictionary 1727
(11th ed. 2019) (defining “subscription” as “[t]he act of signing one’s name on a
document”); Black’s Law Dictionary 158 (11th ed. 2019) (defining “attest” as “[t]o
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bear witness”). Furthermore, § 33-5-5 makes clear that “no form of attestation shall
be necessary[.]”
Accordingly, the trial justice did not err in affirming the order of the probate
court, denying the petitioners’ probate appeal, and finding that LaParle was a witness
to the execution of the testator’s will.
IV
Conclusion
For the reasons set forth herein, we affirm the judgment of the Superior Court.
The record may be returned to the Superior Court with direction to remand the case
to the Westerly Probate Court for proceedings consistent with this opinion.
Justice Robinson did not participate.
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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
Title of Case In re Estate of Barbara J. Cardiff.
No. 2020-92-Appeal.
Case Number
(WP 18-498)
Date Opinion Filed January 21, 2022
Justices Suttell, C.J., Goldberg, Lynch Prata, and Long, JJ.
Written By Chief Justice Paul A. Suttell
Source of Appeal Washington County Superior Court
Judicial Officer from Lower Court Associate Justice Sarah Taft-Carter
For Petitioners:
Michael P. Lynch, Esq.
Attorney(s) on Appeal
For Respondent:
Kelly M. Fracassa, Esq.
SU-CMS-02A (revised June 2020)