Putney v. Putney

McNEILLY, Justice: This appeal is from a decision and order of the Court of Chancery refusing probate of a conformed photocopy of a will executed by Ellison W. Putney on January 13, 1978 (the “1978 Will”). In refusing probate the Court of Chancery found that the petitioner for probate, Helen Putney, had failed to sustain her burden of overcoming the presumption that testator destroyed the 1978 Will animo revocandi. We agree and affirm the decision of the Vice-Chancellor. Ellison Putney was a very successful Wilmington businessman. From 1954 until his retirement in 1975, he ran a local blueprinting operation known as Wilmington Blue. He owned approximately 42% of the outstanding stock; his 94 year old mother Winifred Ward owned 48% of the stock; his son Thomas Putney owned 6% of the stock; and two individuals Robert Mason and Wilson Green owned 2% each. In addition to Wilmington Blue, Mr. Putney also managed Audio Visual Arts Inc. (AVA), a commercial art and photographic supplies business. He owned 41% of the outstanding stock of AVA at the time of his retirement in 1975, having previously transferred ap- , proximately 20% of his majority interest to Helen Putney, his daughter-in-law, and Ryan Putney, her son, his grandson, (23,-565 and 10,365 shares respectively). The balance, or approximately 39% of AVA stock was owned by Ellison Putney’s mother Winifred Ward. Ellison Putney had three sons, Thomas, Hilton and Hugh. Hugh died in 1981. Hilton was married in 1960 to Helen Putney, divorced in 1968, and presently is confined to Delaware State Hospital, although apparently mentally competent to manage his financial affairs. Thomas was married, divorced and subsequently married to Mary Putney, a trained nurse, admired by Ellison [1126] Putney and in whom Ellison Putney confided his physical and health problems. Under the 1978 Will Ellison bequeathed $5,000 to each of his three sons, his four grandchildren, and Thomas’s former wife. The residue he divided between his mother and Helen Putney, the petitioner and proponent of the 1978 Will. Specifically to Helen Putney, the 1978 Will bequeathed all of Ellison Putney’s stock interest in AVA and Wilmington Blue, and the adjoining real estate at 817 Tatnall Street. Ellison Putney was very loyal and close to his Mother Winifred Ward. Mrs. Ward lived with him six months a year during the last four years of his life. When she was at her home in Utah Ellison called her every day. It was Mrs. Ward and her second husband who were the co-founders and successful builders of Wilmington Blue as a going business. It also was Mrs. Ward who gave Ellison 42% of her stock in Wilmington Blue, and helped him in the purchase of 817 Tatnall Street and the beginning of AVA. According to Mary Put-ney, Ellison Putney always said it was his Mother, Winifred Ward, who had given him everything he' ever really had in life. Mrs. Ward was particularly interested in Wilmington Blue expressing the hope to Ellison that it would always remain in the family and that her grandson Thomas would succeed to that business. Because of a legal battle involving the Will of Ellison’s wife, Thomas’s mother, Thomas and Ellison were estranged. Subsequent to 1977, however, it appears that Thomas and Ellison resolved those differences since Thomas Putney was taken into the Wilmington Blue operation at Mrs. Ward’s insistence and the two developed a closer working and social relationship. Ellison Putney continued to submit to his mother’s wishes and kept his close personal relationship with Helen Putney from his mother until his death. Ellison Putney, naturally, knew Helen Putney prior to her marriage to Hilton Putney in 1960. That father-daughter-in-law relationship blossomed into a constant companionship and love affair after Hilton and Helen Putney's divorce in 1968 and Hilton’s psychiatric commitment to Delaware State Hospital. Helen Putney had begun work at Wilmington Blue in 1965 as a bookkeeper, but left when Ryan was born in 1966. Shortly thereafter she started work at AVA. She was a hard worker and good business woman, and steadily advanced, with Ellison Put-ney’s help, until she was made president of AVA in 1978. Throughout this period the close personal bonds between Ellison Put-ney and Helen Putney developed to the point that Ellison Putney built a home on land Helen Putney had acquired at a seashore resort. Together with Ryan they spent every weekend there. The three of them also spent every New Years’ eve in Puerto Rico and ostensibly appeared to the public as man and wife. Ellison Putney went to great lengths to keep this relationship, which continued until Ellison’s death, from his Mother. Helen Putney argues that Ellison Put-ney’s pattern of conduct over a period of thirty years prior to his death, evidenced a presumption that he did not intend to die intestate. Beginning in 1950 Ellison Put-ney had at least five different Wills. In each case Ellison Putney had a new Will drawn and executed before destroying the old one. That does not appear to be the case here, however, since there is no evidence in the record that Ellison Putney consulted an attorney about a new Will after he left his attorney’s office with the 1978 Will in hand. Additionally, Ellison Putney’s deathbed actions sufficiently buttressed the Vice-Chancellor’s conviction that Ellison Putney had destroyed the 1978 Will animo revocandi knowing that he had “taken care” of Helen Putney and that he also had proven his loyalty to his mother Winifred Ward. In 1982 it was suddenly discovered that Ellison had a brain tumor and there was no hope. Ellison was aware of his hopeless condition and so informed Thomas Putney’s [1127] wife Mary. Approximately seven weeks prior to his death Ellison Putney called a meeting in his hospital room of himself, his mother, and the other minority stockholders of Wilmington Blue. At that meeting Thomas was elected co-chairman of the Board of Wilmington Blue. Prior to his operation from which he never recovered, Ellison Putney executed a power of attorney to Helen Putney, drawn by an attorney employed by Helen Putney. On the same day Helen Putney entered Ellison Putney’s safe deposit box and removed all his things, including $20-30,000 worth of gold coins which Ellison Putney told her to keep. She cashed four treasury bills valued at $10,000 each and put them in a joint checking account with Ellison Put-ney, $20,000 of which Ellison Putney directed Helen Putney give to Thomas and Mary Putney for the purpose of acquiring additional space for Wilmington Blue expansion. In addition, between April and May, Ellison gave Helen property valued at between 70 and 80,000 dollars and transferred stock to Ryan worth approximately $6200. Following Ellison Putney’s death the 1978 Will, which was the last known Will, could not be found. The parties agree that since the Will was last seen in the possession of Ellison Putney, the presumption is that he destroyed it animo revocandi. Helen Putney contends she has borne her burden of proving that it is more probable that Ellison Putney did not revoke his Will animo revocandi than the presumed fact that he did revoke it. Delaware Uniform Rules of Evidence Section 301. It cannot be disputed that Ellison Put-ney’s loyalty and love were divided between his mother Winifred Ward and his paramour and former daughter-in-law, Helen Putney. It is the loyalty and love for her that Helen Putney contends is sufficiently persuasive to overcome the presumption that Ellison Putney did not intentionally revoke his Will. She relies upon the testimony of several witnesses who testified on her behalf that Ellison Putney and Helen Putney were most compatible business-wise and otherwise; that Ellison had said he would “take care of Helen”; that he wanted Helen to control AVA; that he told Helen he would leave her his AYA stock and 817 Tatnall Street; and that there was an apparent husband-wife, father-daughter, or family relationship between Ellison Putney and Helen Putney. The parties do not dispute that the standard to be applied to the evidence necessary to carry the burden of overcoming the presumption of revocation animo revocan-di is to be found in the Delaware Uniform Rules of Evidence effective July 1, 1980. The pertinent Section 301 provides: (a) Effect. In all civil actions and proceedings not otherwise provided for by statute or by these rules, a presumption imposes on the party against whom it is directed the burden of proving the nonexistence of the presumed fact is more probable than its existence. Use of the words “more probable” mirrors this Court’s accepted definition of “preponderance of the evidence”. Applying that standard to this record we must agree with the Vice-Chancellor that Helen Putney’s evidence does not overcome by a preponderance of the evidence the presumption that Ellison Putney revoked the 1978 Will ani-mo revocandi. For the foregoing reasons, the judgment of the Court of Chancery be, and it hereby is AFFIRMED.