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Morrill v. Morrill
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 133
Docket:	Cum-97-338
Argued:	February 2, 1998
Decided:	June 3, 1998

Panel:  WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN,  DANA, LIPEZ, and SAUFLEY, JJ.
Majority:  WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.
Concurring:  SAUFLEY, J.




GARDNER W. MORRILL v. GEORGE R. MORRILL et al.

DANA, J.

	[¶1]  George R. Morrill appeals from a judgment entered in the
Superior Court (Cumberland County, Mills, J.) after a jury verdict finding he
tortiously interfered with his brother Gardner's expectancy of an
inheritance in their parents' residential property.  George contends that the
court committed errors in excluding certain evidence and in its instructions
to the jury.  We agree and vacate the judgment.
	[¶2]  Ruth and Gardner R. Morrill had three children, Gardner W.,
Roger, and George.  Between 1981 and 1989, the parents made certain real
estate and stock transfers to their son George, including several family
businesses and the residual interest in their residence in Harrison.  Gardner
R. Morrill died in 1990, survived by his wife and children.  In 1993 Gardner
W. sued George,{1} alleging that George had tortiously interfered with Gardner
W.'s legacy by inducing his parents to make these transfers.  At the trial,
George moved for a judgment as a matter of law.  The trial court reasoned
that to maintain a claim of tortious interference with an expected legacy,
Gardner W. had the burden to prove his parents were intestate at the time of
the tortious conduct, and the court granted the motion because no such
evidence was presented during the trial.  We vacated that judgment and held
that "[s]imply by proving that he is their child and therefore a natural
recipient of his parents' bounty, Gardner [W.] ha[d] established an
expectancy of inheriting a portion of his parents' estate."  Morrill v. Morrill,
679 A.2d 519, 521 (Me. 1996) (Morrill I).
	[¶3]  During the second trial George attempted to have attorney Neil
Dow testify regarding statements made by the parents at the time Dow
consulted with them regarding the transfer of their residence. The
statements were excluded from evidence.  George's offer of proof was that
when Dow went to the elder Morrills' house to discuss the transfer of the
residence, Gardner R. asked Dow to informally review his will, which had
been drafted by another attorney.  Dow would have testified that while
conversing about the will, Gardner R. told him that Gardner W. was a "loser"
and that Ruth told him that Gardner W. was "financially irresponsible."  The
court conceded that the statements were relevant but excluded them on the
authority of Estate of Utterback, 521 A.2d 1184 (Me. 1987), which held that
testimony concerning statements of intent made by a testator at or near the
time a will was made are inadmissible for purposes of clarifying testamentary
language because they "would subvert the very purpose of the Statute of
Wills:  to provide a reliable source of the testator's intent expressed under
circumstances where the testator fully understands the significance and
permanence of the statements he has reduced to written form."  Id. at
1188.  The jury found that George had tortiously interfered with Gardner
W.'s expectancy with regard to the family residence and awarded damages of
$40,000.  This appeal followed.
	[¶4]  George argues that the court misapplied Utterback, contending
that the mere fact that Dow's conversation with his parents occurred while
reviewing Garner R.'s will does not bring it within the scope of the holding
in Utterback.  We agree.  Our decision in Utterback, which reflected a policy
of excluding statements of a testator's intent that would otherwise be
admissible pursuant to M.R. Evid. 803(3), the state of mind hearsay
exception, applies in cases where a party seeks to introduce the hearsay
statement of a testator to prove testamentary intent.  In this case, the
parents' statements that Gardner W. was a "loser" and "financially
irresponsible" were not hearsay.  The statements were not offered to prove
the truth of the matter asserted, namely, whether Gardner W. was in fact a
loser or financially irresponsible; they were offered instead to prove Gardner
R.'s view of Gardner W.  It was therefore error to exclude the offered
testimony.
	[¶5]  Moreover, the exclusion of Dow's testimony was not harmless
error.
An exclusion of evidence, even if wrongful, will not suffice to
cause a reversal unless the party against whom the ruling is
made is aggrieved or prejudiced by it.  Prejudicial injury occurs
only if the evidence excluded was relevant and material to a
crucial issue and if it can with reason be said that such evidence,
if admitted, would probably have affected the result or had a
controlling influence on a material aspect of the case.
Towle v. Aube, 310 A.2d 259, 264 (Me. 1973).  A crucial issue in this case
was whether George unduly influenced his parents into transferring their
property to him.  A presumption of undue influence arises when the
superior party in a confidential relationship obtains a benefit from a
transaction between the parties.  DesMarais v. Desjardins, 664 A.2d 840,
844 (Me. 1995) (citing Ruebsamen v. Maddocks, 340 A.2d 31, 36 (Me.
1975)).  Because Gardner W. introduced evidence tending to establish the
existence of a confidential relationship between George and his parents,
George, in order to rebut the presumption of undue influence, was required
to demonstrate the entire fairness of the transaction.  See Estate of
Campbell, 1997 ME 212, ¶ 8, 704 A.2d 329, 331.  Evidence of Gardner R.
and Ruth's estimation of Gardner W., especially in comparison to George,
was directly relevant to proving that the conveyance of the residence was
fair and untainted by George's influence.  The law does not prohibit a party
in a confidential relationship from transferring property to the superior
party in the relationship, even by gift.  Rather, the law seeks to ensure that
transfers within these types of relationships are the true intent of the
grantor and not the product of fraud or undue influence on the part of the
grantee.   For this reason, George should have been permitted to introduce
the parents' statements in evidence to demonstrate their lack of regard for
Gardner W.'s character and to explain why they legitimately would want to
transfer the property to George.  We cannot say that the exclusion of such
testimony was harmless.
	[¶6]  We also find error in the court's instruction regarding whether a
child has an expectation of inheriting a portion of his parents' estate.  Citing
our holding in Morrill I, the court instructed the jury that "[a] child has an
expectancy of inheriting a portion of his parents' estate."  Although we held
in Morrill I that the existence of a parent-child relationship enabled a claim
of tortious interference with an expected legacy to survive a motion for a
judgment as a matter of law, our holding should not be read to establish the
party's burden of proof on the nature and extent of that legacy.
	[¶7]  We have adopted the Restatement formulation of the tort:
One who by fraud, duress or other tortious means intentionally
prevents another from receiving from a third person an
inheritance or gift that he would otherwise have received is
subject to liability to the other for loss of the inheritance or gift.
Restatement (Second) of torts § 774B (1979); see Plimpton v. Gerrard, 668
A.2d 882, 885 n.2 (Me. 1995).  The elements of the tort are (1) the
existence of an expectancy of inheritance; (2) an intentional interference by
a defendant through tortious conduct, such as fraud, duress, or undue
influence; (3) a reasonable certainty that the expectancy of inheritance
would have been realized but for the defendant's interference; and (4)
damage resulting from that interference.{2}
	[¶8]  Pursuant to Morrill I, a factfinder may infer, from the mere fact
that the plaintiff is the child of his parents, that he had an expectancy of
inheriting something from his parents.  In order to demonstrate to a
reasonable certainty that the inheritance would have been received but for
the actions of the tortfeasor, the plaintiff must present evidence on the
source, nature and extent of the expected inheritance.  That evidence may
include the intestacy of the parents, the existence and content of any
previous or existing will, and the previous transfers of property out of the
parents' ownership or control during their lifetimes.  The amount or value of
the property to have been received must be proven to a reasonable degree of
certainty but need not be proven with exactitude.{3}
	[¶9]  Accordingly, the plaintiff has the burden of proving both the
existence and the extent{4} of the expectancy.  If the plaintiff fails to offer
evidence of the existence and extent of the expectancy, the mere fact of that
parental relationship would be insufficient to establish a prima facie case of
tortious interference with an expected inheritance.
	The entry is:
Judgment vacated.  Remanded for further
proceedings consistent with the opinion
herein.


SAUFLEY, J., concurring. [¶10] I concur with the Court's conclusion that Utterback's holding must be restricted to evidentiary issues directly involving will contests. I also concur with the Court's conclusion that Gardner must prove the extent of his expectancy because, in order to make out a claim for tortious interference with inheritance, the plaintiff must demonstrate that the tortious action of the wrongdoer caused the plaintiff's damages.{5} I write separately, however, to address the confusion that I believe was created by the language of Morrill I. [¶11] In Morrill I, Gardner appealed from the trial court's decision granting George's motion for judgment as a matter of law at the conclusion of Gardner's case. At trial, Gardner presented no more than the bald fact of his biological relationship to his parents on the issue of his expectancy. On appeal, Gardner did not provide a transcript of the trial proceedings. Nonetheless, we concluded that a trial transcript was not necessary for the review of the narrow question presented, and held that:
[s]imply by proving that he is their child and therefore a natural
recipient of his parents' bounty, Gardner has established an
expectancy of inheriting a portion of his parents' estate. 
Because he is their child, the existence vel non of a will is
irrelevant to the issue whether an expectancy has been created. 
679 A.2d at 521 (emphasis added).  Because the only evidence presented by
Gardner on the existence, nature or extent of his expectancy was his
relationship to his parents and because we concluded that evidence limited
to that fact was sufficient to allow Gardner to get to the jury, Morrill I held
that proof by a plaintiff that he was a child of his parents was sufficient to
meet his burden on all issues related to the expectancy.  Accordingly, on
remand, the trial court instructed the jury that "a child has an expectancy of
inheriting a portion of his parents' estate."
	[¶12]  Recognizing the evidentiary gap created by the language of
Morrill I, the Court today concludes that the trial court should have
understood our opinion in Morrill I to mean that a child has an expectancy
in his parents' estate only to the extent proven.  We did not, however, place
any such burden of proof on Gardner in Morrill I, but simply noted that
"[e]vidence concerning testacy . . . may be relevant to enhance or diminish
the expectancy and to determine damages." Morrill I, 679 A.2d at 521
(emphasis added).  As the Court has now correctly held, the plaintiff does
have the burden of proving both the existence and the extent of the
expectancy.  If the plaintiff fails to offer evidence of the existence and extent
of the expectancy, the plaintiff's claim cannot survive a motion for judgment
as a matter of law.  To the extent that Morrill I held otherwise, I would
overrule its holding.

Attorney for plaintiff: Thomas F. Hallett, Esq., (orally) P O Box 7508 Portland, ME 04112 Attorney for defendants: Jeffrey T. Edwards, Esq., (orally) Preti, Flaherty, Beliveau & Pachios, LLC P O Box 11410 Portland, ME 04104-7410
FOOTNOTES******************************** {1}. The family businesses, Morrill's Auctions, Inc. and Maine Auto Dealers Exchange, Inc., were also named as defendants. {2}. See Firestone v. Galbreath, 616 N.E.2d 202, 203 (Ohio 1993) (establishing elements of tort of intentional interference with expectancy of inheritance). {3}. See Restatement (Second) of Torts § 912 cmt. d (1979) ("If there is an interference with intangible rights . . . there may be great difficulty in proving the existence or amount of loss with any degree of certainty. It is necessary to show at least that the right is valuable."). {4}. We note that Attorney Dow's testimony regarding the elder Morrills' attitudes towards Gardner, in addition to establishing the overall fairness of the property transfers, is relevant to the issue of the extent of Gardner W.'s expected legacy. {5}. See Restatement (Second) of Torts § 774B cmt. d (1979) ("An important limitation upon the rule stated in this Section is that there can be recovery only for an inheritance or gift that the [plaintiff] would have received but for the tortious interference of the actor. This means that, as in other cases involving recovery for loss of expectancies . . . , there must be proof amounting to a reasonable degree of certainty that the bequest or devise would have been in effect at the time of the death of the testator . . . .").