Opinion
No. CV 09-4045244-S
September 14, 2010
MEMORANDUM OF DECISION ON MOTIONS FOR SUMMARY JUDGMENT
This is an action by the Administrator of the Estate of Ruth Goryn to recover certain real property and other assets obtained by defendant David Mann by virtue of a quitclaim deed dated March 26, 2009 and a power of attorney dated March 26, 2009 from the decedent. It is not disputed that Mann befriended the decedent as her landscaper. The quitclaim deed dated March 26, 2009 was filed in the Glastonbury Town Clerk's office on May 19, 2009, three days prior to decedent's death and was acknowledged that one of the two witnesses was Mann. The power of attorney was also acknowledged and had two witnesses one of which was Mann.
Plaintiff Administrator moved for Summary Judgment on March 4, 2010, claiming that the deed and power of attorney were void because the relevant statute requires two witnesses and Mann was not a proper witness because he was not only an interested party but a donee or named beneficiary.
On April 21, 2010 Mann filed an opposing Motion for Summary Judgment claiming the deed and power of attorney were valid as a matter of law.
In this action both parties agree there is no dispute as to the facts. The argument centers around the presence of the defendant (David Mann) as one of the witnesses to each document.
I
Plaintiff cites the standards of title as authority for the required two witnesses be disinterested persons, but it is not seriously disputed that the standard serve as advisory and are reflective of local custom and do not have the authority of law.
II
Plaintiff primarily relies on the early Supreme Court case of Winsted Savings Bank Bldg Ass'n. v. Spencer, 26 Conn. 195 (1857), which held that "by our statutes no title can be conveyed except by a deed attested by two witnesses and duly acknowledged. This must mean by two disinterested witnesses, and acknowledged before a disinterested magistrate."
The current state of law, however, is much more forgiving. Specifically, no modern case in Connecticut has made a ruling that the witness to a deed must be disinterested, and to the contrary, the Appellate Court has held that witnesses with an interest are not disqualified or invalid. Additionally, there are no cases on record that have distinguished between an "interested" or "disinterested" witness and one who is a "beneficiary" of the deed.
The Appellate Court, in Giannopoulos v. Corbin, 7 Conn.App. 601, 509 A.2d 1075 (1986), discussed the applicability of Winsted, holding that:
[I]n support of her claim that the warranty deed was not witnessed by two disinterested, competent witnesses, the defendant relies on Winsted Savings Bank v. Spencer . . . as the prevailing law. There, the court held that the land statute which provides that the signing by the grantor shall be attested by two witnesses has always been considered `as requiring that deeds should be attested by disinterested or competent witnesses; witnesses who could testify in court in respect to the execution, upon any controversy that might arise in respect to it.' . . . In Winsted, for example, a stockholder in a private corporation was not deemed to be disinterested. General Statutes § 47-6, which the defendant maintains is applicable to corporate transactions only, provides: `Conveyances of real estate made to or by any corporation . . . may be attested by witnesses interested therein, and may be acknowledged before properly authorized persons who are so interested.' Even if we assume that the defendant is correct, the enactment of General Statutes § 52-145(a), which provides in relevant part that "[a] person shall not be disqualified as a witness in any action because of, (1) his interest in the outcome of the action as a party or otherwise . . ." overcomes the objection since interest no longer disqualifies one from being a witness in a case or from being able to testify to the execution of a deed.
Essentially, the Appellate Court reasoned that as Winsted equated a "disinterested" witness with one who could testify in court should controversy arise, and that as § 52-145(a) provides that interest in the outcome of an action does not disqualify a person as a witness to that action, that therefore no requirement remains for the witnesses to a deed to be "disinterested." Additionally, the Appellate Court also noted the existence of General Statutes § 47-6, which allows for witnesses to corporate conveyances of land to have an interest in the transaction and remain qualified as witnesses. This would tend to lend strength to the notion that any beneficiary of a land conveyance can also be a witness to the deed in that transaction.
Connecticut General Statutes § 47-5 states that "(a) [all] conveyances of land shall be: (1) In writing; (2) if the grantor is a natural person, subscribed, with or without a seal, by the grantor with his own hand or with his mark with his name annexed to it or by his attorney authorized for that purpose by a power executed, acknowledged and witnesses in the manner provided for conveyances or, if the grantor is a corporation, limited liability company or partnership, subscribed by a duly authorized person; (3) acknowledged by the grantor, his attorney or such duly authorized person to be his free act and deed; and (4) attested to by two witnesses with their own hands." (Emphasis added.) The statute makes no distinction as to the witnesses having an interest or not in the conveyance of land, merely requiring two witnesses without any other clarifying terms.
III
Further, it is concluded that the appointed individual on a power of attorney can serve as a witness on the document granting that power of attorney. General Statutes § 1-43(a) holds that "[t]he execution of this statutory short form power of attorney shall be duly acknowledged by the principal in the manner prescribed for the acknowledgment of a conveyance of real property." Section 47-5, referenced above, describes the requirements for an acknowledgment of a conveyance of real property. If a grantee of a conveyance of real property, or any interested party, may also be a witness to that conveyance, then it follows in the wake of § 1-43(a) that the person receiving the benefit of the power of attorney may also be a witness to the document granting him the power.
It is concluded that the presence of Mann as a witness does not invalidate the quitclaim deed or the power of attorney.
Plaintiff's Motion for Summary Judgment is denied. Defendant's Motion for Summary Judgment is granted.