Lizbeth A. Larkin, in her capacity as of the Estate of Catherine I. Ryan v. Michaela Arthurs Michaela Arthurs v. Lizbeth Larkin ( 2019 )

June 17, 2019
Supreme Court
No. 2017-56-Appeal.
(WP 14-93)
No. 2017-183-Appeal.
(WP 14-423)
Lizbeth A. Larkin, in her capacity as :
Executrix of the Estate of Catherine I. Ryan
v. :
Michaela Arthurs et al. :
Michaela Arthurs et al. :
v. :
Lizbeth Larkin. :
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2017-56-Appeal.
(WP 14-93)
No. 2017-183-Appeal.
(WP 14-423)
(Concurrence and
Dissent begin on Page 17)
Lizbeth A. Larkin, in her capacity as :
Executrix of the Estate of Catherine I. Ryan
v. :
Michaela Arthurs et al. :
Michaela Arthurs et al. :
v. :
Lizbeth Larkin. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Robinson, for the Court. This contentious and regrettable family dispute
revolves around the distribution of the assets of the parties’ deceased mother, Catherine Ignatia
Ryan.1 Two of Mrs. Ryan’s children, Michaela Arthurs and Mark Ryan, appeal from the
November 9, 2016 final judgments in two Washington County Superior Court actions that were
treated in a consolidated manner in that court and are likewise being reviewed by us in a
consolidated manner. Before us are the Superior Court’s rulings with respect to the substance of
1
The four children of Catherine Ryan are: Michaela Arthurs, Mark Ryan, Lizbeth Larkin,
and Lisa Ryan. We shall hereinafter sometimes refer to the members of the Ryan family by their
first names. We do so for the sake of clarity, and we intend no disrespect.
-1-
two orders of the Probate Court of the Town of South Kingstown.2 Those rulings of the Superior
Court provided that: (1) as to two specific bank accounts at BankNewport, those accounts were
not estate assets and should be distributed pursuant to paragraph three of Catherine’s will—i.e.,
one should be distributed to Lisa and the other to Lizbeth rather than being divided equally
among all four of Catherine’s children; and (2) there was no basis to remove Lizbeth as executrix
of Catherine’s estate. Michaela and Mark timely appealed both judgments of the Superior Court
to this Court.
For the reasons set forth in this opinion, we affirm both judgments of the Superior Court.
I
Facts and Travel
It is undisputed that Catherine died on January 14, 2013. It is also undisputed that, at
some point in 2012 after having sold her house, Catherine deposited the proceeds of the sale into
an account at Washington Trust (the proceeds account). It is undisputed that Catherine then
drew upon the proceeds account by having two checks issued in her name in the amount of
$50,000 each. The parties further agree that, in October of 2012, those checks were deposited
into two bank accounts at BankNewport, into each of which was deposited $50,000. The first
account indicates that its owners are “Catherine I. Ryan or Lizbeth Larkin.” The second account
indicates that its owners are “Catherine I. Ryan or Lisa A. Ryan.” Neither account was
specifically identified as being a joint account with right of survivorship (nor did either account
contain any indication to the contrary).
2
The first appeal from the Probate Court was brought by Lizbeth (in her capacity as
executrix of her mother’s estate) in the Superior Court; it was assigned case No. WP-2014-0093,
and it will hereinafter sometimes be referred to as “the distribution controversy.” The second
appeal from the Probate Court was brought in the Superior Court by Michaela and Mark; it was
assigned case No. WP-2014-0423, and it will hereinafter sometimes be referred to as “the
removal controversy.”
-2-
In early February of 2013, Lizbeth filed in the Probate Court a petition to probate
Catherine’s last will and testament. (Catherine’s will had named Lizbeth as executrix.) When
Lizbeth filed the universal inventory with the Probate Court, she did not make reference therein
to the two BankNewport accounts.3 Michaela and Mark then proceeded to file an objection to
the inventory, contending that the two BankNewport accounts should have been included.
On July 25, 2013, the probate judge ordered Lizbeth to amend the inventory by including
therein the two BankNewport accounts. Lizbeth did not appeal that order to the Superior Court,
and she amended the inventory. Several months later, on February 5, 2014, the probate judge
issued another order, which provided that the two accounts were part of what he termed as the
“general inventory” of the estate. He then determined that the proceeds from those accounts
should be distributed under paragraph six of Catherine’s will, pursuant to which they would be
distributed “in equal shares” among the four siblings. Lizbeth timely appealed the latter order to
the Superior Court.
On March 19, 2014, Michaela and Mark filed what was titled a “renewed motion” in the
Probate Court seeking to remove Lizbeth as executrix. On June 17, 2014, the probate judge
issued an order denying that motion. Michaela and Mark then timely appealed that order to the
Superior Court.
The two appeals from the Probate Court were consolidated, and a trial was held in the
Superior Court on November 30, 2015. At the trial, Lizbeth testified that, in October of 2012,
Catherine had been informed by her doctors “that she only had a matter of months to live.”
Lizbeth further testified that, on October 16, 2012, a few days after receiving what Catherine
3
It appears from the record that, at some point during the probate proceedings, the funds
from the two BankNewport accounts were deposited into an account or accounts at Washington
Trust. However, for ease of reference we refer to the disputed accounts as “the two
BankNewport accounts.”
-3-
referred to as her “death sentence,” Catherine requested Lizbeth to drive her to an office of
Washington Trust. It was Lizbeth’s testimony that, at Washington Trust, Catherine asked that
two $50,000 bank checks be made out to her from her account at that bank with the balance to
remain in a Washington Trust account in her name. Lizbeth testified that, upon leaving
Washington Trust, Catherine stated that the funds left in the Washington Trust account after the
withdrawal of the two $50,000 checks “would be her probate.” Lizbeth said that her mother then
asked to be taken to an office of BankNewport and to have Lisa meet them there.
Lizbeth further testified that Lisa did meet them at BankNewport and that Catherine told
a bank representative that she wanted to open one account for Lisa and another account for
Lizbeth. Into each of those two accounts Catherine deposited one of the $50,000 Washington
Trust checks. It was Lizbeth’s further testimony that Catherine told her that “the probate was set
up * * * and whatever was left [was] to be divided by four * * *.”
Lisa also testified at trial. She stated that, at the time of the opening of the BankNewport
accounts, Catherine told her that she wanted one of the accounts to belong to Lizbeth and one to
Lisa.
There were several joint exhibits admitted into evidence at trial, including: Catherine’s
will; the deposition testimony of Lisa Sellar, a “retail banking administrator” in the employ of
BankNewport; the deposition testimony of Paul Ragosta, the attorney who had advised Catherine
concerning her will and drafted the will at issue; and a letter from Lizbeth to Michaela relative to
Catherine’s estate. Pertinent portions of those exhibits will be discussed hereinafter.
Several months later, on August 31, 2016, the trial justice issued a bench decision. He
first addressed and then rejected the arguments of Michaela and Mark to the effect that the
appeal should be rejected on “law of the case,” res judicata, or “jurisdictional” grounds. He
-4-
proceeded to hold that, after considering the principles set forth in this Court’s opinion in the
case of Robinson v. Delfino, 710 A.2d 154 (R.I. 1998),4 the absence of a designation on the two
BankNewport accounts relative to the survivorship issue was, in his words, “the product of a
mistake by the bank * * *.”5 He further determined that that mistake allowed for the
examination of extrinsic evidence as to Catherine’s intent because “the Court can’t go simply on
the face of these two accounts * * *.” He then found that “the two accounts, although on their
face [they] do not contain a designation of a right of survivorship * * * were accounts that were
created with the right of survivorship.” The trial justice proceeded to hold that the two
BankNewport accounts “should be distributed pursuant to the terms of paragraph 3 of the will
* * *.” Accordingly, he concluded that each of the two BankNewport accounts should be
distributed to Lisa and Lizbeth respectively as surviving owners and should not be divided
among all four siblings equally pursuant to paragraph six of the will.
With respect to the second issue before him, the trial justice affirmed the Probate Court’s
decision not to remove Lizbeth as executrix because he found that there was no “ill or improper
intent” on the part of Lizbeth and because he determined that she “appears to have been acting in
accordance with what she understood her mother’s wishes to be * * *.”
4
Significantly, in the portion of his bench decision dealing with the holding in Robinson v.
Delfino, 710 A.2d 154 (R.I. 1998), the trial justice quoted the basic rules set forth in that case
relative to the survivorship issue in the context of joint accounts including the following
important proviso: “[I]f a joint bank account does not provide for survivorship rights, that
absence will be conclusive evidence of an intent not to transfer any right of ownership to the
survivor, absent evidence of mistake or fraud.” Robinson, 710 A.2d at 161 (emphasis added).
5
We describe in fuller detail in Part IV.A.3, infra, the factual findings and the credibility
determinations that constitute the basis for the trial justice’s conclusion that the absence of a
designation as to the right of survivorship vel non was “the product of a mistake by the bank
* * *.”
-5-
Subsequently, on October 18, 2016, the Superior Court justice issued an order in the
consolidated appeals. That order provided that the two accounts should be distributed to Lizbeth
and Lisa and that there was no basis to remove Lizbeth as executrix; final judgments to that
effect were entered for Lizbeth in the two cases on November 9, 2016.6 Michaela and Mark
appealed those final judgments to this Court.
II
Standards of Review
It is well established that a probate appeal to the Superior Court “is de novo in nature
* * *.” Lett v. Giuliano, 35 A.3d 870, 876 (R.I. 2012); see G.L. 1956 § 33-23-1(b) (“An appeal
under this chapter is not an appeal on error but is to be heard de novo in the superior court.”).
It is a fundamental principle of our appellate jurisprudence that “the factual findings of a
trial justice sitting without a jury are accorded great weight and will not be disturbed unless the
record shows that the findings clearly are wrong or the trial justice overlooked or misconceived
material evidence.” In re Estate of Ross, 131 A.3d 158, 166 (R.I. 2016) (internal quotation
marks omitted); see B.S. International Ltd. v. JMAM, LLC, 13 A.3d 1057, 1062 (R.I. 2011);
Bielecki v. Boissel, 715 A.2d 571, 575 (R.I. 1998). If, in our review of the record, “it becomes
clear to us that the record indicates that competent evidence supports the trial justice’s findings,
we shall not substitute our view of the evidence for [that of the trial justice] even though a
6
For the sake of clarity, we think it helpful to quote the Superior Court’s judgment with
respect to the distribution controversy:
“The two bank accounts * * * which are the subject matter of this
litigation, in the name of the decedent Catherine Ryan and Lisa
Ryan and the decedent Catherine Ryan and Lizbeth Larkin are not
estate assets and should be distributed pursuant to the terms of
Paragraph 3 of the Will to the survivors, namely Lisa Ryan and
Lizbeth Larkin.”
-6-
contrary conclusion could have been reached.” In re Estate of Ross, 131 A.3d at 166 (internal
quotation marks omitted).
Similarly, “[w]e accord great weight to a trial justice’s determinations of credibility,
which, inherently, are the functions of the trial court and not the functions of the appellate court.”
JPL Livery Services, Inc. v. Rhode Island Department of Administration, 88 A.3d 1134, 1142
(R.I. 2014) (internal quotation marks omitted); see Rodriques v. Santos, 466 A.2d 306, 309 (R.I.
1983) (“On appeal we do not consider arguments that certain evidence is more credible than
other evidence. That is a function of the trial court.”).
Additionally, it should be borne in mind that, “[w]hen interpreting the language of a will,
* * * we proceed on a de novo basis, just as we do when we interpret the language in contracts.”
Lazarus v. Sherman, 10 A.3d 456, 462 (R.I. 2011) (internal quotation marks omitted). “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.”
Steinhof v. Murphy, 991 A.2d 1028, 1033 (R.I. 2010) (internal quotation marks omitted).
III
Issues on Appeal
On appeal, Michaela and Mark contend, with respect to the distribution controversy, that
the trial justice: (1) acted without jurisdiction to review an “unappealed” order of the Probate
Court; (2) improperly allowed hearsay testimony at trial; (3) erroneously determined that there
had been a mistake regarding the opening of the two BankNewport accounts; (4) erred in his
ruling relative to the distribution of the two BankNewport accounts; and (5) improperly
considered extrinsic evidence when interpreting the will. As for the removal controversy,
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Michaela and Mark contend that the trial justice erroneously affirmed the Probate Court’s denial
of their motion to remove Lizbeth as executrix.
IV
Analysis
A
The Distribution Controversy
1. The Alleged Lack of Jurisdiction
Michaela and Mark argue at the outset that, because Lizbeth did not appeal the July 25,
2013 Probate Court order directing her to amend the universal inventory so as to include the two
BankNewport accounts, “the Superior Court lacked jurisdiction” to consider the question of
whether those accounts included a right of survivorship. However, after careful deliberation, we
find that argument to be unavailing. We find ourselves to be wholly in agreement with the trial
justice’s specific determination that the question of whether the accounts were joint with right of
survivorship “was not finally adjudicated until February 5th, 2014” and that, therefore, that issue
was properly before the Superior Court in view of the fact that Lizbeth did timely appeal the
February 5, 2014 order.7 (Emphasis added.)
7
The trenchant analysis by the trial justice relative to this threshold issue deserves to be
quoted in extenso:
“It also appears from the order of February 5th, 2014 that
the issue may have only been partially resolved by the Probate
Court but that it was a two-part analysis. It was an analysis of
whether to put it in the inventory, and then once it was in the
inventory how it was to be addressed pursuant to the will. And if
there were an appeal to have been taken prior to that, then it would
have been a piece-meal process which would have either bounced
back to the Probate Court or not bounced back to the Probate
Court.
-8-
The first order (issued on July 25, 2013) made no definitive ruling as to the nature of the
accounts; it was in actuality no more than a pragmatic and ministerial determination by the
probate judge to the effect that it would be best to gather all potential estate assets under one roof
until such time as he had occasion to grapple with the challenging legal issue of distribution.
The order regarding the BankNewport accounts simply gathered Catherine’s assets together so
that an orderly administration could take place—as eventually happened; it was in the nature of
“housekeeping” and was not amenable to review by a justice of the Superior Court. It was only
the second order (issued on February 5, 2014) that substantively addressed the distribution
controversy. The probate judge in the second order stated that the matter was “presented for
resolution,” and he ordered that the proceeds of the accounts “be disbursed in keeping with
Paragraph Sixth of the will,” with which ruling Lizbeth took issue by appealing to the Superior
Court.
It is our view that an appeal to the Superior Court at the time of the issuance of the first
order was certainly not required. Actually, an appeal at that time would have had absolutely no
meaningful effect because the vitally important legal issue concerning the distribution of
Catherine’s assets under the will had not yet been decided. In other words, at that point in time
“So under the circumstances of this case, the Court does
find that to the extent that there was a ruling made by the Probate
Court in July of 2013 to place the accounts in the inventory, it was
not finally adjudicated until February 5th, 2014, where the Court
at that time made, again, specific reference in its order to the
Robinson vs. DelFino [sic] case and made a determination that it
did make.” (Emphasis added.)
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(July 25, 2013), an appeal would have been a vain act8 because it would have failed to present a
sufficiently developed issue for the Superior Court to review.
For these reasons, we are unpersuaded by the jurisdictional argument presented by
Michaela and Mark.
2. The Hearsay Issue
Michaela and Mark have also argued that the trial justice erred in “allow[ing] the
introduction of voluminous hearsay testimony.” The testimony with which they take issue and
which was objected to at trial is Lizbeth’s recounting of conversations with her mother shortly
before the latter’s death. The contested statements by Catherine were purportedly made at the
time of the opening of the bank accounts, and we have adequately summarized those statements
in the Facts and Travel section of this opinion. The statements attributed to Catherine were
objected to on hearsay grounds, but the trial justice overruled those objections without
articulating his reason for so ruling.9
We need not resolve in this case that particular evidentiary issue because it is our view
that, even if the statements purportedly made by Catherine were erroneously admitted into
evidence, such an evidentiary error in the context of the bench trial under review would
constitute harmless error and would not be a basis for reversal. See Now Courier, LLC v. Better
8
See Guilford v. Mason, 22 R.I. 422, 430, 48 A. 386, 388 (1901) (recognizing “[t]he
maxim that the law does not compel one to do vain or useless things”); cf. El Dia, Inc. v.
Hernandez Colon, 963 F.2d 488, 498 (1st Cir. 1992) (“[E]quity will not require a useless thing,
or insist upon an idle formality.”) (quoting Stewart v. United States, 327 F.2d 201, 203 (10th Cir.
1964)).
9
“Whether evidence falls within an exception to the hearsay rule is a question that is
addressed to the sound discretion of the trial justice.” Martin v. Lawrence, 79 A.3d 1275, 1281
(R.I. 2013). As such, “this Court will not disturb a ruling in that respect unless it is clearly
erroneous.” Id.
- 10 -
Carrier Corp., 965 A.2d 429, 435 (R.I. 2009) (noting that this Court has previously held that
“the admission of hearsay is harmless when the record demonstrates that it is merely cumulative
of proper evidence”); see also Flanagan v. Wesselhoeft, 765 A.2d 1203, 1211 (R.I. 2001);
Nugent v. City of East Providence, 103 R.I. 518, 528, 238 A.2d 758, 764 (1968) (“It is well
settled that such [inadmissible] evidence is prejudicial only when it reasonably appears that the
irrelevant evidence so influenced the judgment of the trial justice as to have caused him to rest
his decision in whole or substantial part on that evidence.”); see generally Bradley v.
Sugarbaker, 891 F.3d 29, 37 (1st Cir. 2018).
Completely apart from the statements purportedly made by Catherine that are challenged
as being inadmissible hearsay, there was other, rock solid evidence in the record to support the
trial justice’s finding of mistake—namely, the crucial, unrebutted deposition testimony of Lisa
Sellar,11 the Retail Banking Administrator from BankNewport who testified as to its being the
policy of BankNewport to open joint accounts “only” if they are of the right-of-survivorship
variety. What is more, the testimony of Ms. Sellar was buttressed by the deposition testimony of
Attorney Paul Ragosta, who testified as to the legal advice that he had provided to Catherine
regarding “the distinction between probate assets and nonprobate assets.”
For these reasons, we perceive no basis for reversing the trial justice on evidentiary
grounds, even conceding arguendo that he erred with respect to the hearsay issue.
11
It should be noted that, unlike what might be contended as to the motivation of Lizbeth
and Lisa, there is absolutely no basis in the record for concluding that Ms. Sellar was anything
more than a completely disinterested and qualified witness—a bank administrator testifying as to
her bank’s consistent policy. To employ a graphic but cogent metaphor, Ms. Sellar had no dog
in the fight.
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3. The Trial Justice’s Finding of Mistake
Michaela and Mark next argue that the trial justice erred with respect to the issue of
“mistake.” (It will be recalled that the trial justice found that the fact that the boxes on the
BankNewport joint account cards that indicate whether or not a joint account is with right of
survivorship were left blank was “the product of a mistake by the bank,” and that, therefore, the
exception for “mistake” that was expressly established by this Court in Robinson v. Delfino, 710
A.2d 154 (R.I. 1998), was applicable. See Robinson, 710 A.2d at 161; see also footnote 4,
supra.)
It is important to bear in mind that, in Robinson, this Court set forth the following
principle that is applicable to the analysis of joint accounts that on their face are not explicit as to
right of survivorship: “[I]f a joint bank account does not provide for survivorship rights, that
absence will be conclusive evidence of an intent not to transfer any right of ownership to the
survivor, absent evidence of mistake or fraud.” Robinson, 710 A.2d at 161 (emphasis added).
Even though the evident goal of the Court in Robinson was to create a presumption as to there
being no survivorship rights unless the joint account so indicates, the Court in that case expressly
allowed for that presumption being rebutted by “evidence of mistake.” Id.
Having explicitly noted the exception in Robinson for “mistake,” the trial justice first
observed that “clearly, the bank accounts don’t have any of the boxes [as to survivorship vel non]
checked.” Given the applicability of the Robinson exception for mistake, the trial justice was
free to look to extrinsic evidence in order to determine whether Catherine intended that the two
joint accounts at BankNewport be considered to be joint accounts with right of survivorship. He
then proceeded to consider the deposition testimony of Lisa Sellar, an employee of BankNewport
whose title was Retail Bank Administrator. In that deposition, Ms. Sellar testified that
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BankNewport “open[s] joint accounts with rights of survivorship only.” 12 The trial justice also
considered the deposition of Paul Ragosta, the attorney who had assisted Catherine in connection
with the will at issue. He noted that Attorney Ragosta “testified that [Catherine] was aware of
the distinction that paragraph 3 [of her will] would essentially be assets that were not part of the
probate estate and that paragraph 6 would be assets that were part of the probate estate.” 13 The
trial justice then made the explicit finding that “the two accounts, although on their face do not
contain a designation of a right of survivorship, they were accounts that were created with the
right of survivorship.”
The issue of mistake is factual in nature. See McEntee v. Davis, 861 A.2d 459, 464 (R.I.
2004) (stating that the Court could not “conclude that the trial justice committed reversible error
in making a factual determination of unilateral mistake”). Accordingly, we see no basis in the
record for overturning the trial justice’s finding of mistake since, as was summarized in the
immediately preceding paragraph, there was more than sufficient competent evidence to support
that finding. See In re Estate of Ross, 131 A.3d at 166.
4. The Distribution of the Accounts Under Paragraph Three of the Will
Michaela and Mark next argue that the bank accounts should be distributed pursuant to
paragraph six of Catherine’s will—not pursuant to paragraph three, as the trial justice ruled.
Paragraph three of Catherine’s will states, in pertinent part:
“In the event that at the time of my death I am joint owner,
co-owner or owner of any * * * bank account * * * which is
12
Ms. Sellar was cross-examined as to BankNewport’s policy with respect to joint
accounts, and her testimony remained the same.
13
While there was also testimony by Lizbeth and Lisa concerning statements purportedly
made by Catherine about the survivorship issue, we deliberately abstain from factoring those
statements into our analysis of the sufficiency of the factual basis for the trial justice’s finding of
mistake. See Part IV.A.2, supra.
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registered or issued in my name and that of any other person or
persons as tenants by the entirety or as joint tenants with right of
survivorship, or which in any way appears to be payable to either
co-owner or a named beneficiary on my death, I give, devise and
bequeath, absolutely and forever in fee simple and free of trust, all
my right, title and interest in any such property to the surviving
joint owner or co-owner thereof, or to the survivor apparently
entitled thereto upon my death.” (Emphasis added.)
The relevant portion of paragraph six of the will states that, in the event Catherine were
to be predeceased by her husband (as did happen), Catherine would: “give, devise and bequeath
all the rest, residue and remainder of my estate in equal shares to my children * * * if they
survive me * * *.”
“When interpreting the language of a will, * * * we proceed on a de novo basis, just as
we do when we interpret the language in contracts.” Hayden v. Hayden, 925 A.2d 947, 950 (R.I.
2007); see also Lazarus, 10 A.3d at 462. By the plain and ordinary meaning of the above-quoted
paragraph three of the will, the trial justice correctly held that the joint accounts with right of
survivorship at issue (i.e., the two previously described BankNewport accounts) should be
distributed pursuant to paragraph three to “the surviving joint owner[s]”—viz., Lizbeth and Lisa.
Because the accounts at issue were joint accounts with right of survivorship, the trial
justice properly determined that they should be distributed to Lizbeth and Lisa through paragraph
three of their mother’s will and not through paragraph six, which deals with “the rest, residue and
remainder” of Catherine’s estate.14
14
The trial justice also stated that the two accounts “are not estate assets” and that they
might also fall under the umbrella of accounts distributed under paragraph three by nature of
“appear[ing] to be payable to either co-owner or a named beneficiary on my death.” Because
this Court has determined that the trial justice properly decided that the accounts should be
distributed under paragraph three as joint accounts with right of survivorship, we need not
address these statements by the trial justice. See Furlan v. Farrar, 982 A.2d 581, 585 (R.I.
2009); see also Summit Insurance Co. v. Stricklett, 199 A.3d 523, 533 (R.I. 2019); see generally
PDK Laboratories Inc. v. United States Drug Enforcement Administration, 362 F.3d 786, 799
(D.C. Cir. 2004) (John Roberts, J., concurring in part and concurring in the judgment) (“[T]he
- 14 -
5. The Trial Justice’s Consideration of Extrinsic Evidence to Interpret the Will
Michaela and Mark also argue that what they contend was the trial justice’s consideration
of extrinsic evidence to interpret Catherine’s will was “improper and erroneous” because, they
allege, the language of the will was unambiguous.
It is a well-established “principle that parol or extrinsic evidence cannot be used to vary
the unambiguous terms of a will.” Greater Providence Chapter, R.I. Association of Retarded
Citizens v. John E. Fogarty Foundation for the Mentally Retarded, 488 A.2d 1228, 1229 (R.I.
1985). However, contrary to the assertions of Michaela and Mark, it is our definite opinion that
that principle was not violated in this case. The trial justice specifically stated that he did “not
find that there’s any reason to look at parole evidence for review of the third paragraph.” When,
in the course of deciding this difficult case, the trial justice did look to extrinsic evidence (e.g.,
the testimony of Ms. Sellar and of Attorney Ragosta), he did so while addressing the
survivorship issue with respect to “the bank accounts”—not while interpreting the will.
The parties agree that the will is unambiguous, and it is clear that the trial justice treated
it as such. As previously indicated, the trial justice properly considered extrinsic evidence to
determine the nature of the bank accounts at issue, and he then ruled that those accounts (which
he had held were joint accounts with right of survivorship) were to be distributed, pursuant to the
plain and unambiguous language of paragraph three, to Lizbeth and Lisa respectively.
B
The Removal Controversy
Michaela and Mark also contend that the trial justice erred when he affirmed the Probate
Court’s denial of their motion seeking to remove Lizbeth as the executrix of their mother’s
cardinal principle of judicial restraint” is that “if it is not necessary to decide more, it is necessary
not to decide more * * *.”).
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estate. They aver that she should have been removed because she has an “obvious, continuing
and intractable conflict of interest” and that she has failed to meet her fiduciary duty as
executrix, in view of her purported “refusal to marshal, assemble and collect the assets of the
Estate” and “claim[ing] them as her own.” They additionally argue that a letter from Lizbeth to
Michaela concerning a particular mink coat was part of “overwhelming and incontrovertible
evidence” of a level of hostility that rendered her unsuitable as executrix.
This Court gives deference to a lower court’s decision on removing executors. See
Andrews v. Carr, 2 R.I. 117, 118 (1852) (“This [C]ourt is careful in reversing the decrees of the
Court of Probate in removing or appointing administrators, because from its position that court
can better judge who is the suitable person for the office.”). We have further expressly held that
“the mere fact that one has a claim against an estate is not a disqualification for the office [of
executor] * * *.” Murray v. Angell, 16 R.I. 692, 693, 19 A. 246, 246 (1890).
The trial justice reviewed the evidence and arguments presented by Michaela and Mark
relative to Lizbeth’s alleged unsuitability (viz., her actions regarding the two bank accounts and
the letter to Michaela about a certain mink coat). He held that Lizbeth “appears to have been
acting in accordance with what she understood her mother’s wishes to be, and, more particular,
what she understood to be the impact of” the BankNewport accounts. He additionally stated that
the letter about the mink coat did not support “any basis for removing Ms. Larkin.”
After a careful review of the record, we perceive no basis for holding that the trial justice
erred in determining that the evidence presented was not sufficient to require Lizbeth’s removal
as executrix. Therefore, we affirm his decision with respect to the removal controversy.
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V
Conclusion
For the reasons set forth herein, we affirm both judgments of the Superior Court. We
remand the record to that tribunal.
Justice Goldberg, concurring in part and dissenting in part. I concur in that part of
the majority opinion that holds that the issue regarding the status of the BankNewport accounts
was not finally adjudicated until February 5, 2014, and, therefore, the appeal was properly before
the Superior Court. I also concur with the majority’s holding that the trial justice did not err in
affirming the Probate Court’s denial of the motion to remove Lizbeth Larkin as executrix.
However, I part company with the conclusions reached by the majority concerning the two
BankNewport accounts. It is my opinion that the trial justice committed reversible error in
reaching the conclusion that the accounts were joint accounts with the right of survivorship, and
that he strayed far afield from this Court’s venerable opinion in Robinson v. Delfino, 710 A.2d
154 (R.I. 1998). It is also my opinion that any suggestion of mistake in the opening of joint bank
accounts that do not contain a right-of-survivorship designation should not serve as an open
invitation for the presentation of hearsay testimony in order to perform a postmortem cerebral
autopsy, the very type “of foray into the mind of a deceased person” that Robinson was intended
to eliminate. McManus v. McManus, 18 A.3d 550, 553-54 (R.I. 2011). Finally, because we have
held steadfast to Robinson’s landmark holding that, when confronted with a joint bank account
that “does not provide for survivorship rights, that absence will be conclusive evidence of an
intent not to transfer any right of ownership to the survivor” in the absence of mistake, the party
alleging mistake bears a high burden of proof; a mistake must be established by clear and
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convincing evidence. Robinson, 710 A.2d at 161. Consequently, I dissent. This case should be
remanded for a new trial.
Hearsay
It is my opinion that the Superior Court abused its discretion, thereby committing
reversible error, in allowing hearsay testimony and then relying on that hearsay to determine
Catherine’s intent at the time the BankNewport accounts were opened. Over continuous
appropriate hearsay objections from Michaela and Mark’s attorney, the trial justice admitted a
significant amount of hearsay testimony from Lizbeth and Lisa regarding Catherine’s intent
when opening the BankNewport accounts. The Superior Court justice then anchored his ultimate
decision to this inadmissible evidence. This not only violated our rules of evidence, but its
unfettered admission into evidence lands us right back in the pre-Robinson era.
Specifically, the trial justice relied on hearsay testimony to determine two issues in this
case—first, that there was a “mistake” on the part of the bank in not requiring Catherine to
designate the type of account, and, then, to find that it was Catherine’s intent to create two joint
accounts with the right of survivorship. The Superior Court justice found that “[t]he testimony
of Ms. Larkin and Ms. Ryan, that is completely un-rebutted, clearly establishes for the Court that
it was Ms. Ryan’s intent on October 16, 2012 to create two accounts for the benefit of her two
daughters.” The trial justice’s decision in this case rested upon Lizbeth’s testimony that
“[Catherine] told [Lizbeth] that she wanted to open two accounts, that one was for Lisa Ryan and
one was for Lizbeth Larkin; and [Catherine] told Ms. Larkin that, quote, ‘I want you and Lisa to
have the money.’” The trial justice also found that when Catherine received her “death
sentence,” Lizbeth accompanied her to Washington Trust, where she withdrew funds in two
checks; she allegedly told “Ms. Larkin that the assets that were remaining at Washington Trust
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were her probate[.]” The Superior Court justice also based his decision upon the impermissible
hearsay testimony of Lisa when he noted that “Lisa Ryan testified to the same effect, that her
mother told her that she wanted her to have the money.”
As hearsay, the testimony of Lizbeth and Lisa―who stood to benefit from this
evidence―was not competent to support the Superior Court’s decision to reform those accounts.
Critically, this evidence was self-serving and inadmissible to show Catherine’s state of mind and
intent at the time the joint deposits were opened.
Moreover, the majority’s fallback position that “there was other, rock solid evidence in
the record to support the trial justice’s finding of mistake” is misplaced. First, the majority fails
to point to that evidence. Second, it is not the function of this Court to redact the testimony of
Lizbeth and Lisa to patch together a result. Third, such an exercise ignores the fact that the trial
justice based his decision on their impermissible hearsay statements and a new trial should be
ordered in this case.
Joint Accounts with the Right of Survivorship
This Court’s 1998 opinion in Robinson was a sweeping decision intended to settle, once
and for all, the thorny question of joint accounts with and without the right of survivorship. The
Court promulgated a bright-line groundbreaking rule:
“[T]he opening of a joint bank account wherein survivorship rights
are specifically provided for is conclusive evidence of the intention
to transfer to the survivor an immediate in praeseti joint beneficial
possessory ownership right in the balance of the account remaining
after the death of the depositor, absent evidence of fraud, undue
influence, duress, or lack of mental capacity. Likewise, if a joint
bank account does not provide for survivorship rights, that absence
will be conclusive evidence of an intent not to transfer any right of
ownership to the survivor, absent evidence of mistake or fraud.”
Robinson, 710 A.2d at 161 (emphasis added).
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In adopting this approach, all of the Court’s analytical emphasis was placed on the account
agreement itself, and not the subjective intent of the deceased joint owner of the account.
Essentially, the account agreement is considered an integrated contract, and evidence of the
owner’s subjective intent is not permitted. The goal of the Court in deciding Robinson was to
avoid a requirement that “lawyers, trial judges, juries, and appellate judges perform post mortem
cerebral autopsies * * * to determine and second-guess what the subjective intent of the deceased
joint owner of the account was at the time the account was created.” Id. at 160. It should not
lightly be set aside. The exceptions recognized by this Court, fraud and mistake, should be
construed narrowly, particularly mistake, given its broad potential for abuse in a he said/she said
scenario.
Significantly, in McManus, this Court recognized the importance of Robinson when we
noted that, “[b]y abandoning the formerly unpredictable and inconsistent approach [to right-of-
survivorship battles], we sought to avoid situations whereby ‘lawyers, trial judges, juries, and
appellate judges perform post mortem cerebral autopsies and examinations in order to determine
and second-guess what the subjective intent of the deceased joint owner of the account was at the
time the account was created.’” McManus, 18 A.3d at 553 (quoting Robinson, 710 A.2d at 160).
We also cautioned against “[a]n inquiry into whether the signature card and [bank disclosure
documents] may be interpreted together to create a survivorship right, an inquiry the petitioner
urges upon us, would be exactly the type of foray into the mind of a deceased person that our
holdings in Robinson and Gaspar[ v. Cordeiro, 843 A.2d 479 (R.I. 2004),] sought to foreclose.”
Id. at 553-54. In this case, the sisters engaged in just such an inquiry.
First, Lizbeth and Lisa attempted to prove a mistake on the part of the bank when
Catherine opened the joint accounts by pointing to the fact that there was no designation of the
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type of account the owner intended. Having demonstrated that none of the four choices available
to Catherine was selected, they then sought to prove that Catherine intended that the joint
accounts created an immediate beneficial ownership in the accounts in Lizbeth and Lisa, with the
right of survivorship. It is this second inquiry with which I quarrel. Not only did it rest on rank,
inadmissible hearsay evidence that was relied upon by the trial justice, there was a bloody,
postmortem cerebral autopsy in an effort to establish the subjective intent of the now-deceased
Catherine. This unseemly foray into the mind of the decedent resurrected past estrangements
and finger-pointing concerning which sibling(s) received assets from the parent prior to her
death; all supplied by the very witnesses who stood to gain the most.
To be sure, we are not confronted with a scrivener’s error or other clerical mistake in this
case—errors which, I suggest, fall within the limited class of errors that Robinson anticipated.
Although it is clear that the accounts were opened without providing for survivorship rights and
the multiple choices set forth in the box on the form entitled “Ownership of Account—Consumer
Purpose” were left blank, it should be noted that there were four choices in that box:
“Individual”; “Joint - with Survivorship”; “Joint - No Survivorship”; and “Trust - Separate
Agreement.” There is no evidence that the bank and Catherine engaged in any discussion about
survivorship rights. The trial justice filled in the blanks, and, despite the fact that an account
without a survivorship designation is conclusive evidence of the owner’s intent not to transfer
any right of ownership, absent a mistake, there was no ruling on the burden of proof to overcome
this conclusive evidence in order to establish mistake. Nowhere in the majority opinion is this
addressed.
Nonetheless, in the first case to come before the Court in which a party, alleging mistake,
seeks to overcome the conclusive presumption that an account owner did not intend to transfer
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ownership rights to the survivor in an account that fails to provide for survivorship rights, a
finding of unilateral mistake on the part of the bank (as opposed to a verifiable mutual material
mistake by the account owner and the bank) does not resolve the dispute because it leads us back
to the pre-Robinson days.
Robinson v. Delfino
Lastly, I disagree with the majority’s conclusion that there was more-than-sufficient
competent evidence to support the trial justice’s finding that “the fact that the boxes on the
BankNewport joint account cards that indicate whether or not a joint account is with right of
survivorship were left blank was ‘the product of a mistake by the bank,’ and that, therefore, the
exception for ‘mistake’ that was expressly established by this Court in Robinson * * * was
applicable.” The majority acknowledges that “the evident goal of the Court in Robinson was to
create a presumption as to there being no survivorship rights unless the joint account so
indicates”; the majority goes on to hold that, once the trial justice noted the bank’s unilateral
mistake—the only mistake before him—the trial justice was then “free to look to extrinsic
evidence in order to determine whether Catherine intended that the two joint accounts at
BankNewport be considered to be joint accounts with right of survivorship.” (Emphasis in
original.) This amounts to the reformation of a bank account based on a unilateral mistake with
no requirement of proof by clear and convincing evidence. In my opinion, this is a marked
departure from Robinson, McManus, and Gaspar, and reopens the cerebral autopsy suite for
estate fights. Although the trial justice may have been free to look to (admissible) extrinsic
evidence in order to determine whether a mistake was made, an open foray into the ailing
Catherine’s intent was erroneous, and nothing in Robinson supports this conclusion. This was
not an inquiry into whether there was a mistake by the bank, it was “the introduction of all
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manner of extrinsic evidence [in order] to analyze the depositor’s subjective intent,” which
Robinson expressly disallowed. See Robinson, 710 A.2d at 160.
Furthermore, the only evidence of mistake in this case is that the bank failed to adhere to
a policy of checking off an appropriate box on the signature card. As noted, there was no
testimony that Catherine asked the bank about the right of survivorship in the accounts, before
this gigantic leap back to the pre-Robinson frontier. I simply am not convinced that the bank’s
failure to follow a purported policy of checking boxes on the signature cards opens the door to
extrinsic evidence of the account owner’s subjective intent in order to overcome the conclusive
presumption set forth in Robinson. If the door does open, it should require proof by clear and
convincing evidence. See McEntee v. Davis, 861 A.2d 459, 465 (R.I. 2004); Hopkins v.
Equitable Life Assurance Society of United States, 107 R.I. 679, 685, 270 A.2d 915, 918 (1970).
The judgment in this case should be vacated and the case remanded for a new trial.
Consequently, I dissent.
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
OPINION COVER SHEET
Lizbeth A. Larkin, in her capacity as Executrix of the
Estate of Catherine I. Ryan v. Michaela Arthurs et al.
Title of Case
Michaela Arthurs et al. v. Lizbeth Larkin.
No. 2017-56-Appeal.
(WP 14-93)
Case Number
No. 2017-183-Appeal.
(WP 14-423)
Date Opinion Filed June 17, 2019
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Written By Associate Justice William P. Robinson III
Source of Appeal Washington County Superior Court
Judicial Officer From Lower Court Associate Justice Luis M. Matos
For Plaintiff:
Kevin M. Daley, Esq.
Attorney(s) on Appeal Marvin H. Hormonoff, Esq.
For Defendant:
Michael T. Eskey, Esq.
Stephen A. Izzi, Esq.
SU‐CMS‐02A (revised June 2016)