Lizbeth A. Larkin, in her capacity as Executrix of the Estate of Catherine I. Ryan
Michaela Arthurs et al. Michaela Arthurs et al.
Washington County Superior Court (WP 14-93), (WP 14-423)
Associate Justice Luis M. Matos
Plaintiff: Kevin M. Daley, Esq. Marvin H. Hormonoff, Esq.
Defendant: Michael T. Eskey, Esq. Stephen A. Izzi, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
WILLIAM P. ROBINSON, III ASSOCIATE JUSTICE
contentious and regrettable family dispute revolves around
the distribution of the assets of the parties' deceased
mother, Catherine Ignatia Ryan. 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 two orders of the Probate Court
of the Town of South Kingstown. 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.
reasons set forth in this opinion, we affirm both judgments
of the Superior Court.
Facts and Travel
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).
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. Michaela and Mark then proceeded to file
an objection to the inventory, contending that the two
BankNewport accounts should have been included.
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.
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.
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 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.
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 * * *."
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
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
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
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),  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 * * *." 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.
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 * * *."
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. Michaela and Mark appealed
those final judgments to this Court.
Standards of Review
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 contrary conclusion could have
been reached." In re Estate of Ross, 131 A.3d
at 166 (internal quotation marks omitted).
"[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.").
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
Issues on Appeal
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, Michaela and Mark
contend that the trial justice erroneously affirmed the
Probate Court's denial of their motion to remove Lizbeth
The Distribution Controversy
The Alleged ...