Robert John White v. Estate of Michael A. White (2010)

MEMORANDUM OF DECISION ON APPEAL FROM PROBATE

The appellant in this matter Robert John White appeals from a decree of the Newington Probate Court admitting the last will and testament of his brother Michael A. White to probate on November 24, 2009.   The appellee executor, through his Attorney W. Wilson Keithline, appeared and presented evidence in a de novo proceeding before this court.   The appellant, who is self-represented, did not appear and did not present any opposing evidence, although the contested issues appear largely to be matters of law, not matters of fact.   Notwithstanding the failure of the appellant to appear, the court conducted a de novo hearing at which the appellee presented evidence in support of admitting the disputed will to probate.   The court is satisfied that admitting the will to probate is the correct ruling and enters an order so ruling.

PRELIMINARY MATTERS

Before addressing the merits of the appeal, the court addresses two preliminary matters.   The first is the request of the appellant for a continuance of the hearing.   Two months earlier, the court (Swienton, J.) conducted a pretrial conference to deal with scheduling matters.   Although it is not customary to conduct such matters via conference call, the court did so as a courtesy to the appellant because he is a self-represented party who resides full time in the state of Georgia.   The court encountered some difficulty in eliciting from the appellant a date that he would be available for the trial de novo in this matter.   Finally, the court set the date of October 5, 2010, as the date on which this matter would be heard.

On September 21, 2010, the appellant filed a motion to continue the trial, indicating that he had recently been retained to represent clients-he is an attorney practicing law in Georgia-and those clients had a court appearance that conflicted with the date set for trial in this matter.   Given the difficulty in scheduling this matter in the first place, and given the fact that the appellant had decided to voluntarily accept a work assignment in conflict with this trial date, the court exercised its discretion to deny the motion to continue this matter.   Thereafter the appellant faxed a letter to this court indicating that he would not be appearing for trial.

The second preliminary matter is the appellant's Motion for Disqualification of Judicial Authority.   The appellant asserts that the court has manifested bias or prejudice against him.   As support for that assertion, the appellant appends an affidavit outlining a series of rulings which he characterizes as adverse to him.   The court finds that there is absolutely no merit to his claim that this court is biased or prejudiced against him.   Indeed one of the rulings about which he complains was in his favor.   See # 101, Appellee's Motion to Strike, denied.   Moreover adverse rulings by the court do not amount to evidence of bias sufficient to support a claim of judicial disqualification.   Burton v. Mottolese, 267 Conn. 1, 49-50, 835 A.2d 998 (2003).   The Motion for Disqualification is denied.

THE MERITS OF THE APPEAL

Moving on to the merits of the appeal, the appellee presented evidence from which the court finds that it is proper to admit the will of Michael A. White, dated February 1, 2007, to probate.   Indeed it appears from the appellant's papers that he does not contest the usual requirements for the admission of a will, i.e., genuineness of signatures, testamentary capacity, etc.   Rather the appellant makes a claim of law:  that by omitting mention of Robert John White, who was the brother of the deceased, in the will, the will is invalid as a matter of law.   The appellant suggests that it is proper to invoke the doctrine of “pretermitted heir” in finding this will invalid such that it should be denied admission to probate (thus presumably leaving the deceased intestate).   The appellant argues that his deceased brother's failure to disinherit him specifically and by name compels a finding that the decedent did not intend to disinherit him, so that the will should be declared invalid.   Such a finding is not warranted in this case by either the facts or the law.

Black's Law Dictionary (9th Ed.) defines “pretermitted heir” as:

A child or spouse who has been omitted from a will, as when a testator makes a will naming his or her two children and then, sometime later has two more children who are not mentioned in the will.

Where a testator unintentionally fails to mention in his will, or make provision for, a child, either living at the date of the execution of the will or born thereafter, a statue may provide that such child or the issue of a deceased child, shall share in the estate as though the testator had died intestate.  Id. In Connecticut, the problem of the pretermitted, or omitted, heir is covered by Conn. Gen.Stat. § 45a-257a and 257b, which address only unintentionally omitted spouses and children, not other omitted relatives such as siblings.

To the extent that the doctrine of inheritance by a pretermitted heir has been adapted to other situations in Connecticut (the term is not used in our recent case law), it appears that a variation of the doctrine is used only when interpreting ambiguous language in a will.   See, e.g., Dobreare v. Dobreare, 124 Conn. 286, 199 A. 555 (1938), in which the use of the term issue was deemed ambiguous so that disinheritance of one nephew not otherwise named in the will in favor of certain great-nieces and nephews would not be inferred.   The issue arises most commonly when general terms are used to denote classes of beneficiaries, i.e. “issue,” so that ambiguities arise because of the existence of other potential beneficiaries in that class.

However this doctrine has no applicability to this decedent's will.   First, the will is not ambiguous in the least.   It does not name classes of beneficiaries, but rather names specific individuals to whom the estate is bequeathed.   Secondly the persons to whom the decedent left his estate are not ones that create some uncertainty about either the decedent's largesse (often called the “objects of his bounty”) or the interpretation of the will.   The decedent left no living spouse or lineal descendants.   Michael A. White left a specific bequest of $50,000 to Lee Salmon-his long time female friend-and the remainder of his estate to Timothy F. White and Michelle Goodman, his niece and nephew (and who are, incidentally, the appellant's own children).   There is nothing unusual about the decedent omitting from his will a bequest to his adult brother in favor of a bequest to that brother's children-the younger generation-and to the decedent's companion.   But more important than that, there is not the slightest evidence of an ambiguity in the language of the will or the circumstances of its making.   The appellant's arguments on this issue are without merit.

Curiously the appellant includes a second count in his appeal from probate that reads much more like a civil action for tort damages than a probate appeal.   The appellant claims that there was wrongdoing in the way that the estate of the appellant's (and decedent's) mother Albertine White was handled after she died in 2006.   The appellant cites to no specific order or ruling of the probate court by date or other description.   There is no indication that the appellant made any application to the probate court for any relief relative to the claimed wrongdoing.   Accordingly there is nothing from which to appeal and the appeal from that count is dismissed.

In the third count the appellant complains that the assets of the estates of Albertine White and Michael White have been “co-mingled.”   Again the appellant cites to no probate court order or ruling from which he takes an appeal.   That count is dismissed for the same reason as the second count.

CONCLUSION

The court, having conducted a de novo proceeding, finds that the will of Michael A. White dated February 1, 2007, shall be admitted to probate.   All other counts of this appeal are dismissed.

Patty Jenkins Pittman, Judge

Pittman, Patty Jenkins, J.