Churchill v. Allessio, (AC 16646)

51 Conn. App. 24

719 A.2d 913

ALEXANDER CHURCHILL ET AL. v. EUNICE ALLESSIO, EXECUTRIX (ESTATE OF EVA CHURCHELOW), ET AL.

(AC 16646)

Appellate Court of Connecticut.

Argued September 14, 1998.

Officially released November 10, 1998.

O'Connell, C. J., and Foti and Hennessy, Js. Frederic E. Mascolo, with whom was Cheryl E. Heffernan, for the appellants (named plaintiff et al.).

Gary P. Sklaver, with whom was Irving H. Perlmutter, for the appellees (defendants).

Opinion

FOTI, J.

The plaintiffs Alexander Churchill, Jr., and John Churchill appeal from the judgment for the defendants, rendered after a jury trial, determining that the document offered by the defendants for probate as the last will and testament of Eva Churchelow was revoked by Churchelow and then revived under the doctrine of dependent relative revocation. The plaintiffs claim that the trial court improperly (1) applied the doctrine of dependent relative revocation throughout its rulings on the evidence and in its charge to the jury, (2) permitted the defendants' handwriting expert to render an opinion before the jury based on unauthenticated, improperly admitted exemplars, (3) precluded the plaintiffs from introducing at trial the prior testimony of Helen Skjerding, a witness from another trial, and (4) deprived the plaintiffs of a fair trial by committing an accumulation of errors causing prejudice and bias in the jury's deliberations. We affirm the judgment of the trial court.¹

The following facts are relevant to this appeal. The decedent, Eva Churchelow, died on April 29, 1985. Following her death, a document dated June 27, 1984, and purporting to be Churchelow's last will and testament, was admitted to the Probate Court for administration. After the Probate Court admitted the will, Alexander Churchill, Jr., John Churchill and Marlene Ann Tosun, Churchelow's grandchildren, appealed from that decision to the Superior Court. The case was tried to a jury, which returned a general verdict rejecting the 1984 document as Churchelow's last will and testament.² Thereafter, an appeal was filed in this court, and we affirmed the trial court's rejection of the 1984 will. Churchill v. Skjerding, 31 Conn. App. 247, 624 A.2d 900, cert. denied, 226 Conn. 914, 628 A.2d 986 (1993).

Following this court's ruling, the named defendant in the present matter, Eunice Allessio, who is Churchelow's daughter, found a copy of another document purporting to be Churchelow's last will and testament, which was dated May 17, 1967 (1967 will). The original of this document was located and filed in the Probate Court for administration. After the will was admitted, Churchelow's grandchildren appealed from that decision to the Superior Court claiming, inter alia, that the purported signature of Churchelow appearing on the 1967 will was a forgery. The case was tried to a jury, which found that while Churchelow's signature did, in fact, appear on the 1967 will, she had later revoked the will. The jury concluded, however, that the will should nevertheless be accepted under the doctrine of dependent relative revocation. This appeal followed.³

I

The plaintiffs first claim that the trial court improperly applied the doctrine of dependent relative revocation throughout its rulings on the evidence and in its charge to the jury. We disagree.

A

"The gist of the doctrine [of dependent relative revocation] is that if a testator cancels or destroys a will with a present intention of making a new one immediately and as a substitute and the new will is not made or, if made, fails of effect for any reason, it will be presumed that the testator preferred the old will to intestacy, and the old one will be admitted to probate in the absence of evidence overcoming the presumption. 1 Page, Wills (Lifetime Ed. [1941]) p. 885; 1 Schouler, Wills, Executors & Administrators (6th Ed. [1923]) § 632; 57 Am. Jur. 356, § 514; note, 24 A.L.R.2d 514, 554 [1952]. The rule has been more simply stated in these words: `[W]here the intention to revoke is conditional and where the condition is not fulfilled, the revocation is not effective.' Matter of Macomber, 274 App. Div. 724, 725, 87 N.Y.S.2d 308 [1949].... [The rule] is applicable in cases of partial as well as total revocation. Gardner v. Gardiner, 65 N.H. 230, 232, 19 A. 651 [1890]; Schneider v. Harrington, 320 Mass. 723, 726, 71 N.E.2d 242 [1947]; In re Roeder's Estate, 44 N.M. 578, 588, 106 P.2d 847 [1940]; 57 Am. Jur. 358, § 516." (Citations omitted.) LaCroix v. Senecal, 140 Conn. 311, 315, 99 A.2d 115 (1953).

The plaintiffs claim that the trial court improperly prohibited them from exploring Churchelow's true intent at the time of the revocation of her 1967 will, and subsequent drafting and execution of her 1984 will. This claim is based on the court's refusal to admit into evidence the 1984 will of Churchelow, as well as evidence concerning the circumstances surrounding its making. The plaintiffs claim that these rulings "forced the [plaintiffs] to refrain from making any real inquiry into the mental state and intent of the testator at the time of the act of revocation and the drafting and filing of the 1984 will by examining the surrounding circumstances."

"The trial court has broad discretion in determining the relevancy of evidence. State v. Fritz, 204 Conn. 156, 167, 527 A.2d 1157 (1987). We afford a trial court's ruling on the admissibility of evidence great deference. State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). Its evidentiary rulings will be set aside only where there has been a clear abuse of discretion. State v. Holliman, 214 Conn. 38, 50, 570 A.2d 680 (1990). Every reasonable presumption should be given in favor of the trial court's ruling. State v. Shindell, 195 Conn. 128, 136, 486 A.2d 637 (1985)." State v. Reddick, 36 Conn. App. 774, 789, 654 A.2d 761, cert. denied, 232 Conn. 922, 656 A.2d 671 (1995). "Moreover, evidentiary rulings will be overturned on appeal only where there ... [is] a showing... of substantial prejudice or injustice." (Internal quotation marks omitted.) Paige v. St. Andrew's Roman Catholic Church Corp., 247 Conn. 24, 37, 718 A.2d 425 (1998).

Here, in ruling that the 1984 will, as well as testimony concerning the circumstances surrounding its drafting, was irrelevant and thus inadmissible, the trial court cited our opinion in Churchill v. Skjerding, supra, 31 Conn. App. 253, in which we upheld the jury's general verdict that Churchelow's 1984 will was not properly executed in accordance with General Statutes § 45a-251.⁴ In reference to the 1984 will, the trial court noted that "there cannot be any intention whatsoever on the part of [Churchelow] because either it was not her signature, she did not have the capacity to make the will or she had no intent because she operated under duress."

Here, we cannot say that the trial court's refusal to admit the 1984 will, as well as testimony concerning the circumstances surrounding its failed execution, was a clear abuse of discretion. It is axiomatic that "[e]vidence is admissible only if it is relevant." Tomlinson v. Board of Education, 226 Conn. 704, 728, 629 A.2d 333 (1993). Given the prior determination that the 1984 will was not executed in accordance with § 45a-251 and, thus, was not Churchelow's last will and testament, we cannot say that to preclude its introduction as irrelevant was improper.

Furthermore, an examination of the record reveals that testimony was elicited from Patrick Zailckas, the attorney scrivener of the 1984 will, concerning the circumstances surrounding the revocation of the 1967 will. For example, during cross-examination by the plaintiffs' attorney, the following colloquy took place:

"[Plaintiffs' Counsel:] Okay. And is it your testimony that you used [the 1967] will as a guide?

"[Zailckas:] Yes, sir.

"Q. And did you go over this will with her? "A. Yes, sir.

"Q. And I show you page one on the third clause, did you cross out five acres—five—the term five acres to ten acres? "A. Yes, sir.

"Q. And did Mrs. Churchelow object when you wrote on this will?

"A. She told me to do that.

"Q. She told you to do that?

"A. Yes, sir.

"Q. She told you to cross it out? Right?

"A. She gave me that because she was going to make a new will out. I was using that as a guide....

"Q. She told you that she wanted to revoke this will, she wanted to change it?

"A.... [S]he wanted to change it, not revoke it, change it.

"Q. Well, she wanted a new will?

"A. She wanted a new will.

"Q. She wanted to get rid of this will?

"A. I don't remember her mind. All I know is she wanted changes made, and that's what I was doing."

Therefore, it appears that the plaintiffs were not unduly limited in exploring the true intent of Eva Churchelow at the time of the revocation of the 1967 will. Given the limited evidentiary value of the 1984 will, as well as the evidence elicited concerning the revocation of the 1967 will, the plaintiffs cannot demonstrate that they suffered substantial prejudice by the trial court's ruling.

B

The plaintiffs next claim that the trial court's charge on the doctrine of dependent relative revocation was improper and misled the jury as to the application of that doctrine. We disagree. "In reviewing the [plaintiffs'] claim, we adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. Van Steensburg v. Lawrence & Memorial Hospitals, 194 Conn. 500, 507, 481 A.2d 750 (1984).... We do not critically dissect the charge in order to discover possible inaccurate statements. Amato v. Desenti, 117 Conn. 612, 617, 169 A. 611 (1933). Rather, we see if [the jury instructions] gave the jury a reasonably clear comprehension of the issues presented for their determination under the pleadings and upon the evidence and were suited to guide the jury in the determination of those issues.... [I]n our task...