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,




                                                 -7-
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.)

                                                 -9-
(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.
                                               - 11 -
                             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


                                                 - 12 -
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.
                                                - 13 -
               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 * * *.”).
                                                 - 15 -
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.




                                                - 16 -
                                                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


                                              - 17 -
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


                                               - 18 -
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).



                                               - 19 -
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


                                                - 20 -
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


                                               - 21 -
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


                                              - 22 -
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.




                                              - 23 -
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)
