Opinion
No. CV FST 07 4012462 S
November 13, 2009
MEMORANDUM OF DECISION
I. Background
Mary Merchant appeals from a decision of the Probate Court for the District of Stamford which denied Merchant's application seeking to terminate the occupation by Douglas McCall (formerly known Douglas Backman) of premises known as 24-4 Courtland Avenue in Stamford, Connecticut. Merchant is the daughter of Mary McCall Biggar, and McCall is Biggar's grandson, and the nephew of Merchant.
Mary McCall Biggar died in 1990, and her will was probated in the Stamford Probate Court. The will stated "I hereby give . . . my condominium unit [at 24-4 Courtland Avenue] . . . to my daughter Agnes, in trust . . . to be held for the benefit of my grandson [McCall] for and during the term of his natural life, but only in the event he wishes to occupy said unit personally."
"Should my said grandson Douglas (a) cease to occupy the premises at any time . . . this trust shall terminate." Ex. 1, pp. 2, 3. Upon termination of the trust the premises are to be sold and the proceeds evenly divided between Merchant and McCall. Id., p. 3.
II. Standard of Review
The function of the Superior Court in appeals from the Probate Court is to take jurisdiction of the order or decree appealed from, and to try that issue de novo. After considering all evidence presented, the Superior Court should decide the appeal as an original proposition "unfettered by and ignoring, the result reached in the probate court." Sanford v. Metcalfe, 110 Conn. 162, 168 (2008).
III. Discussion
The crux of the dispute between the parties is whether McCall "ceased to occupy the premises" at 24-4 Courtland "at any time." Merchant contends that McCall essentially bought and moved into a house in Bethany, Connecticut along with his companion Richard Konner for a period of time approximately from 2003 into 2006. In opposition, McCall contends that he put his name on the title and mortgage documents of the Bethany house as an accommodation to Konner who had a bad credit rating, and only stayed in that house when the florist shop in New Haven where he worked, and Konner owned, had big events such as a wedding, or very busy periods such as Valentine's or Mother's Day. Tr. 48-49, 108.
"Tr." followed by one or more numbers refers to pages in the hearing transcript of July 23, 2009 when this case was tried. Post-trial briefing was completed on September 18, 2009.
There was evidence supporting the claims of both parties. Not all of the evidence will be reviewed in this memorandum, but some discussion is necessary. Merchant emphasizes three matters. First, McCall took title to the Bethany property, with Richard Konner's father, Gordon, and both executed a mortgage on the property for $235,000, some $27,000 less than the purchase price. Exhs. 3, 5. Second, Merchant introduced evidence that the electrical usage at 24-4 Courtland Avenue was extraordinarily low from August 2003 through April 2005. Ex. 13. Third, Merchant emphasizes what she terms as McCall's lack of credibility based on tax returns, other documents, and his testimony explaining some of these documents.
McCall's evidence was primarily his testimony and the testimony of three other witnesses. McCall testified, as noted, that he got involved with the Bethany property to assist Richard Konner to have a residence so that Richard's father Gordon, who lived in Florida could stay with Richard for six months out of the year, rather than in Richard's trailer. Tr. 106-07. McCall testified while he stayed overnight at the Bethany property on big business days for the flower shop, or on bad weather days, he never stayed there as long as a month. Tr. 108. McCall does not pay the mortgage on the Bethany property, nor does he receive any money from the house which is now leased to a family. Tr. 118.
McCall also testified that he worked long hours and was very frugal about the use of electricity at 24-4 Courtland Avenue. He often did not turn any lights on in the morning, or in the late evening when he returned because the unit was well lit by outside flood lights. He testified that candles were used when entertaining, and he even went so far as to turn off the circuit breaker in the unit for a month, or a month and a half. Tr. 81-86.
Three other witnesses were called by McCall. Dawn Smith, a lifelong friend of McCall testified that he lived at 24-4 Courtland Avenue since his grandmother died. Tr. 172. She testified that she regularly saw McCall in Stamford this decade and had watched the TV show "American Idol" together at her Stamford residence on Tuesdays and Wednesdays for the last eight years. Tr. 174.
Seth Rappoport lives at 24-1 Courtland Avenue, a unit in the same condominium complex. He testified that he had seen McCall around the complex almost every day since 2003. Tr. 187. His testimony on direct and cross examination was that Mr. McCall was at the Courtland Avenue complex regularly since 2003, and came home almost every night between 11:00 p.m. and midnight. Tr. 187, 190.
Dorothy Tanski lived in the unit directly below McCall at 24-2 Courtland Avenue from September 2004 until July 2009. She heard him walking upstairs and moving around his unit on a regular basis, and also saw his parked van on a regular basis. She testified McCall left the unit around 9:00 a.m. and returned around 11:00 p.m. Tr. 198-204.
The court heard, saw and has carefully reviewed the testimony and exhibits. The court concludes that plaintiff has not proven by a preponderance of the credible evidence that McCall has ceased, or did cease, occupying 24-4 Courtland Avenue. The evidence about McCall taking ownership and mortgaging the Bethany property, along with McCall's explanations are not persuasive that he ceased occupancy of the Stamford unit. There was no evidence that McCall paid any of the purchase price or mortgage payments. The evidence presented by Merchant concerning the total lack of electrical use at the premises for a number of months had persuasive value. Furthermore, this evidence was not compellingly explained away by McCall's testimony. Nevertheless, while McCall's testimony was either wrong or fuzzy on some matters, the court finds it credible on the question of whether he ceased occupying the premises. The fact that he maintained furniture, clothes and even a pet rabbit at the unit at all times helps to convince the court that McCall's occupancy of the unit has not lapsed. McCall's credibility was further buttressed by the very credible and consistent testimony of Smith, Rappoport, and Tanski who place McCall at his condominium unit on a very regular basis when plaintiff would have him living almost full time in Bethany. The court concludes that McCall's presence at Bethany was temporary, and transient.
Connecticut law is to the effect that in construing the provisions of a will, the primary function of a court is to ascertain the intent of the maker and to carry it into effect. The words used in a will are to be interpreted according to their ordinary meeting unless the context or circumstances indicate a different meaning. Saccu's Appeal from Probate, 97 Conn.App. 710, 717 (2006). The ordinary meaning of "occupy" includes to possess, to dwell in, to fill up space. Webster's New World College Dictionary, 4th ed, 2007, p. 997. The court determines that under this meaning, McCall has not ceased to occupy 24-4 Courtland Avenue.
The plaintiff called Attorney Plotnik, who wrote Mary Biggar's will, to testify. Plotnik stated that Biggar's intent was to provide a home for her grandson McCall. Tr. 158, 160. To the extent this testimony is relevant and admissible to interpret the provisions of the will, the court believes its determination is consistent with Biggar's intent, because this court is convinced that McCall has, from the time of his grandmother's death, always considered the Courtland Avenue unit to be his home.
IV. Conclusion
For the reasons set forth herein, the appeal is dismissed.