Opinion
No. CV-06-5001549-S
November 1, 2007
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
The defendant, Mary Jane Marro, has moved for summary judgment on the grounds that there are no material contested issues of fact and under the law the plaintiff does not have an interest in the real estate sufficient to give her standing to seek partition.
Facts
The Complaint seeks the partition of certain residential real estate at 20 Orchard Hill Lane in Middletown ("the Property"), pursuant to Connecticut General Statutes § 52-495, and the sale the Property pursuant to Connecticut General Statutes § 52-500. Helen D. Errede, a widow in her 80s, has resided alone at the Property ever since the death of her mother, Saveria D'Apice, more than 22 years ago.
On or about November 24, 1967, Saveria D'Apice purchased the Property, being Lot No. 3 in "Wild Apple Farm," then a new subdivision off of East Street in Middletown, from the Ingham Hill Corporation, assisted by mortgage financing from Farmers Mechanics Savings Bank. Lot No. 3 contained a newly-constructed single family residence having a Middletown address of 20 Orchard Hill Lane.
When she purchased the Property Mrs. D'Apice was a widow. Shortly after the closing in 1967, she moved into her new residence with her daughter, Helen Errede (referred to herein as "Helen"), also a widow. The two women lived together in the house for nearly 18 years, until Mrs. D'Apice's death in 1985. During all of that time Helen contributed to the mortgage payments, taxes, insurance and other expenses of maintaining, repairing and improving the house.
When Saveria D'Apice executed her Last Will and Testament on October 20, 1978, she had two children: Helen, with whom she shared her house, and Mary J. Adorno (referred to herein as "Mary"), who lived elsewhere in Middletown with her husband and family.
With respect to the house at 20 Orchard Hill Lane, Mrs. D'Apice provided in Article Second of her Will as follows:
To my daughter, Helen D. Errede, of Middletown, Connecticut, I give and bequeath all my right, title and interest in my homestead located at the intersection of East Street and Orchard Hill Lane, Middletown, Connecticut, for and during the term of her natural life; and upon her death or if she should predecease me I give, devise and bequeath said homestead to my daughter, Mary J. Adormo; PROVIDED, HOWEVER, that in the event my said daughter, Helen D. Errede, during her lifetime should desire to sell said premises she shall have the unrestricted power to do so without the necessity of having the remainderman or remaindermen joining in the deed of conveyance, and my said daughter, Helen D. Errede, shall have the right to deduct from the proceeds of such sale all sums invested in said homestead, including mortgage principal and interest, real estate taxes and the costs of improvements and maintenance from the day of my purchase to the date of sale, and I further direct that any sums remaining after such deductions shall be divided equally by my said daughters, Helen D. Errede and Mary J. Adorno.
By Article Third of her Will, Mrs. D'Apice bequeathed her bank deposits, stocks and bonds, and all her household furnishings and other personal property to Helen. Following her mother's death, Helen continued to live in the house at 20 Orchard Hill Lane as her principal residence, which she continues to do to this date.
On June 30, 2006, Helen sold and conveyed the property to Mary Jane Marro for $207,000.00, which she believed to have been the fair market value of the Property on that date. The total of "all sums invested" in the Property by Helen between November 24, 1967, and June 30, 2006, for property taxes, insurance, maintenance, improvements and repairs was $225,679, exceeding the sales price to Mary Jane Marro. Contemporaneously with the conveyance, Mary Jane Marro entered an agreement with Helen to provide her aunt Helen with a life use in the Property.
Mary Jane Marro resides in Stamford, Connecticut. She is one of three daughters of Mary J. Adorno, all of whom are nieces of Helen's. Mary Jane Marro's sister Joan is the plaintiff, as Executrix under the Will of their mother, Mary J. Adorno, who died in Middletown on October 16, 2005. Mary Jane Marro and her two sisters are the residuary beneficiaries under their mother's Will.
Discussion of the Law and Ruling
The plaintiff claims that by virtue of Article Second of the Will of Saveria D'Apice, the Estate of Mary J. Adorno holds an indefeasibly vested one-half interest in the Property, and seeks a partition and sale of the Property so that the Estate's interest may be liquidated in order to facilitate distribution. Helen, who resides at the Property under a life use agreement with defendant Mary Jane Marro, became a party to this case on March 12, 2007, when she was cited in by the Court as a defendant (McWeeny, J.). On July 23, 2007, the Court entered summary judgment in her favor (Dubay, J.).
The defendant Mary Jane Marro claims that by virtue of the same instrument, the interest of the Estate of Mary J. Adorno in the Property was never greater than a "vested remainder subject to complete defeasance," upon the exercise of Helen's "unrestricted power" of sale, and that, upon the sale and conveyance of the Property by Helen to defendant Mary Jane Marro on June 30, 2006, any vested remainder interest in the Property then owned by the Estate of Mary J. Adorno, was divested. Any claim by the plaintiff's Estate thereafter attached, instead, to the proceeds of the sale to the extent, if any, that the proceeds exceeded "all sums invested" in the Property by Helen over a period of thirty-eight and a half years.
The issues presented in this case are entirely legal, and they all concern the interpretation of the Will of Saveria D'Apice, as applied to the claims of the plaintiff. The ownership of an interest in the Property is a necessary element of the plaintiff's case. Connecticut General Statutes § 52-495, § 52-500(a). The resolution of this case turns on the nature of the remainder interest devised under Article Second of the Will of Saveria D'Apice.
Section 157 of the Restatement of Property identifies four categories of remainders. "[A] remainder can be (1) indefeasibly vested; (2) vested subject to open; (3) vested subject to complete defeasance; or (4) subject to condition precedent." 3 Powell on Real Property ®, § 20.04[2][c].
Only remainders which are "indefeasibly vested" contain the power to compel an action for partition. 3 Powell on Real Property ®, § 20.04[1]. Since the remainder interest created and devised under the Will of Saveria D'Apice is plainly not one which was "indefeasibly vested," the well settled weight of American property law does not permit an action for partition in this case.
The Court's task, in matters relating to the interpretation of a will, "is to ascertain the intention of the testator as set forth in the will read in the light of surrounding circumstances on the date of its execution." McFarland v. Chase Manhattan Bank, 32 Conn.Sup. 20, 31 (1973).
A life tenant, who, by virtue of the instrument creating the life use, holds extraordinary or unrestricted power to dispose of property without the consent of holders of the remainder, may be deemed instead to have a fee simple interest in the property. Professor Moynihan's classic work on real property law, in discussing life estates and remainders created by Will, notes that:
It is not unusual to find in a will, in addition to the language giving an interest to the designated beneficiary, . . . provisions specifying the powers of disposition the beneficiary shall have or restricting his powers of disposition. These additional provisions raise a problem of construction as to the estate intended to be given to the beneficiary.
Thus, if T devises Blackacre "to B with the right to use or dispose of Blackacre as B sees fit" B will be held to have a fee simple in the absence of other language in the will indicating a contrary intent.[fn.2, Benz v. Fabian, 54 N.J.Eq. 615, 35 A. 760 (1896)].
Moynihan, Cornelius J. and Kurtz, Sheldon F., Introduction to the Law of Real Property (Third Ed.), West Group, 2002, Section 10, Creation of Life Estates by Deed or Will, p. 62.
Accordingly, while the Will of Saveria D'Apice devised the real property at 20 Orchard Hill Lane to Helen for "life," it also conferred upon her the "unrestricted power" to dispose of it without the joinder of the remainder interests. Despite reference in the Will to Helen's use "for life," she is deemed in fact and in law to have held the Property in fee simple and therefore was able to convey the Property to defendant Mary Jane Marro, free and clear of any claim by the holders of a remainder interest, including the claims of the plaintiff for statutory partition and sale of the Property.
Whatever remainder interest in the Property was created and devised by the Will of Saveria D'Apice to Mary J. Adorno, it was plainly not "indefeasibly vested," but rather was subject to "defeasance" (or "divestment," as many cases provide; see Powell, § 20.04[5][a]).
Connecticut law favors the early vesting of estates, Trowbridge v. Townsend, 112 Conn. 104, 111 (1930). However, "a vested remainder may . . . be so limited that the happening of a specific event or events will divest it . . . It is often difficult to determine whether a given remainder is vested subject to complete defeasance . . . The form of the limitation is of primary importance . . . If the form is that of an unconditional gift followed by language to the effect that the remainder is to be taken away from the remainderman if a condition happens, then the remainder is generally construed as vested subject to complete defeasance." (Citations to authority omitted.) Howard v. Batchelder, 143 Conn. 328, 334, 122 A.2d 307 (1956).
"The cardinal rule of all construction is to find and effectuate the intent of the testator, as disclosed by what he said in his will." First National Bank Trust Co. v. Parish of St. Thomas' Church, 141 Conn. 489, 497, 107 A.2d 246 (1954). The "primary purpose of the testator" may be considered, Howard v. Batchelder, supra, at p. 335 (1956), as well as "the surrounding circumstances" on the date of the will's execution. McFarland v. Chase Manhattan Bank, 32 Conn.Sup. 20, 31 (1973).
It is clear that Saveria D'Apice's purpose at the time of the execution of her Will was, primarily, to provide both a home for her daughter Helen for the remainder of Helen's life and a means to pay or reimburse Helen for Helen's financial contributions to the house at such time as Helen should decide to sell it, and secondarily, to share whatever proceeds Helen should receive from the sale of the house above and beyond such reimbursements, if any, with her daughter Mary.
Defendant Mary Jane Marro has conceded that the plaintiff Estate properly included its remainder interest in the property at 20 Orchard Hill Lane in its probate inventory of assets subject to Estate administration. The remainder interest of the Estate, however, was subject to defeasance. The event of "defeasance" (or "divestment") of the plaintiff's remainder interest occurred when Helen sold and conveyed the Property to defendant Mary Jane Marro, after which event, neither Mary J. Adorno's heirs, nor her beneficiaries, nor her Estate had any direct interest in the real property whatsoever and no statutory right to claim its partition and sale.
The interest once held by Mary J. Adorno may alternatively be considered as one subject to a "remainder subject to a condition precedent": that Mary J. Adorno must have survived Helen prior to her sale of the property, but upon the death of Mary J. Adorno, her sister, Helen, having survived, was thereafter able to convey a fee simple interest in the entire property, free of any claim of a remainder interest by Mary J. Adorno's heirs or devisees, and thereafter, neither Mary J. Adorno nor her Estate had any interest in the Property whatsoever and no statutory right to claim its partition and sale.
The plaintiff has argued that the fair market value of the Property at the time of the June 30, 2006 sale is a question of fact relevant to this case which precludes the entry of summary judgment. The fair market value of the Property, however, is irrelevant to the issue of whether or not the plaintiff holds sufficient interest in the Property to seek its partition. The plaintiff either holds sufficient interest or does not. Since the Will of Saveria D'Apice gave Helen the "unrestricted power" to sell the Property during her lifetime, the amount of net sale proceeds realized from such sale, if determined to be greater or less than fair market value thereof, may have given rise to a separate claim between Helen, as the life tenant, and the plaintiff holding some remainder interest, but is not a part of an action for partition and sale of the real estate. In the case of Joan Adorno, Executirix of the Estate of Mary J. Adorno v. Helen Errede, Docket No. CV-06-5001009-S, now pending before this court, the plaintiff seeks just such an accounting from Helen.
For the foregoing reasons, the plaintiff does not hold sufficient interest in the Property to seek or to compel a partition, as claimed in Count One of the Complaint, or a sale, as claimed in Count Two. The plaintiff does not have an "indefeasibly vested" remainder interest in the Property, which is the only kind of remainder interest recognized in law as having the right to ask the court for partition. Summary judgment is hereby entered in favor of the defendant.