Opinion
X04HHDCV126036160S
02-14-2017
Francis T. Schwerin, Jr. et al. v. Bessemer Trust Company, as Trustee et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT (#168, #170 and #176)
David M. Sheridan, J.
This is a declaratory judgment action seeking a determination as to the proper method for distributing the corpus of two family trusts when those trusts expire according to their terms. Before the court are cross motions for summary judgment filed by different groups of potential beneficiaries, advancing different schemes for distribution based upon an interpretation of the particular language used in the trust agreements.
I. FACTS AND PROCEDURAL BACKGROUND
At the center of this dispute are two trusts. The first was created by Harvey Hubbell, III (referred to in the trust instrument as " Harvey Hubbell") on August 23, 1957, and amended on October 9, 1963 (" the Hubbell Trust"). The second was created by Louie E. Roche, Harvey Hubbell, III's mother, on September 2, 1957 (" the Roche Trust"). The Hubbell Trust and Roche Trust are referred to collectively herein as " the Hubbell Family Trusts."
A. The Terms of the Trust Agreements Regarding Expiration of the Trusts
By its terms, the Hubbell Trust expires upon
. . . the death of the last survivor of the grantor, his wife Virginia W. Hubbell, his children Harvey Hubbell, Jr., William H. Hubbell and Elizabeth H. Schwerin, and his grandchildren Lisa Lorraine Hubbell and Francis Timothy Schwerin . . .
Hubbell Trust, October 9, 1963 Amendment, Article FIRST.
By its terms, the Roche Trust expires
. . . upon the death of the last survivor of the grantor, her son Harvey Hubbell, her grandchildren Harvey Hubbell, Jr., William H. Hubbell and Elizabeth H. Schwerin, and her great-grandchildren Lisa Lorraine Hubbell and Francis Timothy Schwerin.
Roche Trust, Article FIRST.
Thus, the seven measuring lives for the Hubbell Family Trusts consist of Harvey Hubbell, III himself, his mother, his wife, his three children (Harvey Hubbell, Jr. a/k/a Harvey Hubbell, IV; defendant William H. Hubbell a/k/a William Ham Hubbell; and defendant Elizabeth H. Schwerin) and Harvey Hubbell, III's two grandchildren who were alive at the time the Trusts were created (plaintiff Francis T. Schwerin, Jr., and defendant Lisa Lugovich, né e Lisa Loraine Hubbell). The Hubbell Family Trusts will expire upon the death of the last survivor of the measuring lives. Four of the measuring lives have ended. Plaintiff Francis T. Schwerin, Jr. and defendants William Ham Hubbell, Elizabeth H. Schwerin, and Lisa Lugovich are still alive.
The measuring lives in both trusts are not identical. The Roche Trust includes Louie Roche as a measuring life, but does not include Virginia Hubbell. The Hubbell Trust includes Virginia Hubbell, but not Louie Roche. Since both Virginia Hubbell and Louie Roche are deceased, the differences are, for purposes of this analysis, immaterial.
Louie E. Roche died in 1961; Harvey Hubbell, III died in 1968; Virginia W. Hubbell died in 1998; and Harvey Hubbell, IV (referred to in the trust agreements as " Harvey Hubbell, Jr.") died in 2010.
B. The Terms of the Trust Agreements Regarding Distribution of Trust Principal Upon Expiration of the Trusts
With respect to the distribution of Trust principal upon expiration, the Hubbell Trust provides in pertinent part:
Upon the expiration of the trust term the trustees, subject to the provisions hereinafter contained, shall convey and deliver all property then belonging to the principal of the trust to grantor's issue then living, per stirpes .
Hubbell Trust, October 9, 1963 Amendment, Article FIRST (emphasis in original).
With respect to the distribution of Trust principal upon expiration, the Roche Trust provides in pertinent part:
(e) Upon the expiration of the trust term the trustees shall convey and deliver all property then belonging to the trust, including the principal and any undistributed income thereof, absolutely to the issue of the grantor then living, per stirpes, or in default of such issue to the persons who would be entitled to take the same in accordance with the laws of the State of Connecticut then in force if the grantor has died at the expiration of the trust term, intestate, and a resident of the State of Connecticut, and the absolute owner of said property.
Roche Trust, Article FIRST (emphasis in original).
C. The Lineal Descendants of the Grantors of the Hubbell Family Trusts
The issue of the grantors of the Hubbell Family Trusts are as follows:
Harvey Hubbell III was the only child of Louie E. Roche, therefore the issue of Louie Roche are, for the purposes of Trust distribution, no different from the issue of Harvey Hubbell, III.
The three children of Harvey Hubbell : Harvey Hubbell, Jr. a/k/a Harvey Hubbell, III (deceased), William Ham Hubbell; and Elizabeth H. Schwerin.
The six grandchildren of Harvey Hubbell, all whom are currently alive, are:
a) the two children of Harvey Hubbell Jr., a/k/a Harvey Hubbell IV:
1. Harvey Hubbell V; and
2. Lisa Lorraine Hubbell, now known as Lisa Lugovich.
b) the only child of William Ham Hubbell:
1. William Hale Hubbell.
c) the three children of Elizabeth H. Schwerin:
1. Francis T. Schwerin, Jr.;
2. Cynthia Carole Schwerin; and
3. Brenda Schwerin.
The sixteen great-grandchildren of Harvey Hubbell, all of whom are currently alive: William Hale Lyon Alarcon Hubbell; Alexandra Louie Hubbell; Stephen Michael Lugovich; John Daniel Lugovich; Augustine Lazarus Schwerin; Timothy Hale Schwerin; Craig Thomas Schwerin; Mary Anastasia Campion; Seamus Francis Campion; Martin Ambrose Campion; Tadhg William Campion; Elizabeth Lorraine Nunez; Clara Antonia Nunez; Brenda Mercedes Nuriez; Jennifer Blanca Nunez; and Talpa Guadalupe Nunez.
This action was commenced in October 2012 by the plaintiffs Frances T. Schwerin, Jr. and Brenda Schwerin and seeks a declaratory judgment that
upon the passing of the last measuring life--i.e., the passing of the last of Elizabeth H. Schwerin, William Ham Hubbell, Francis T. Schwerin, Jr., and Lisa L. Lugovich--the principal of the Hubbell Family Trusts will be distributed in six equal amounts to the six grandchildren of Harvey Hubbell, III, and the referenced distribution will be per stirpes, such that the one-sixth share that would have gone to any deceased grandchild of Harvey Hubbell, III will instead go to the issue of each such deceased grandchild.
September 15, 2014 Amended Complaint [#130], p. 8.
On September 30, 2015, the plaintiffs moved for summary judgment [#170]. The plaintiffs argue that the court should find that, at the expiration of the term of the Hubbell Family Trusts, the provisions in the trust indentures which direct distribution of the property of the trust " to grantor's issue then living, per stirpes, " require a stirpital distribution at the generational level defined by the six grandchildren of Harvey Hubbell, III, with any children of the six grandchildren succeeding to the shares of their deceased parent.
The defendants William Hale Hubbell and William Hale Lyon Alarcon Hubbell have also moved for summary judgment [#168]. Those defendants argue that the court should find that, upon termination of the Hubbell Family Trusts, the provisions in the trust indentures which direct distribution of the property of the trust " to grantor's issue then living, per stirpes, " require a strict per stirpes method of distribution, with each child of Harvey Hubbell (Harvey Hubbell, Jr., Elizabeth H. Schwerin, and William H. Hubbell) as the head of each stirpe.
The defendants Harvey Hubbell V, Lisa L. Lugovich, Richard J. Lugovich, Stephen M. Lugovich, and John D. Lugovich (sometimes referred to as " the Hubbell-Lugovich defendants") filed a third motion for summary judgment [#176] based upon arguments similar to those of defendants William Hale Hubbell and William Hale Lyon Alarcon Hubbell. The Hubbell-Lugovich defendants argue that, upon termination of the Hubbell Family Trusts, " the corpus of each trust should be divided equally into three shares, which are representative of the three children of Harvey Hubbell, III, with living descendants of each of the three children succeeding to the shares of their deceased ancestors." (September 30, 2015 Memorandum in Support of Motion for Summary Judgment [#177], p.3.)
After initial consideration of the parties' motions, the court ordered that three guardians ad litem be appointed for the minor, unborn and unascertained beneficiaries who are descendants of Brendan Schwerin and Cynthia Schwerin, Harvey Hubbell, V and William Hale Hubbell, and Lisa Lugovich and Francis Schwerin respectively. Each guardian ad litem submitted a report as to their view of the proper distribution of the trust corpus based upon the particular interests they represented.
Attorney Nuala E. Droney, the guardian ad litem for the minor, unborn and unascertained beneficiaries who are descendants of Brendan Schwerin and Cynthia Schwerin, and Michael D. O'Connell, the guardian ad litem for the minor, unborn and unascertained beneficiaries who are descendants of Lisa Lugovich and Francis Schwerin, argue that the Trust principal should be distributed per capita to all members of the oldest generation of Hubbell Family with a member still living, and to the issue of all deceased members of that generation by representation. This is similar to the position of plaintiffs, who have argued that the principal should be divided equally among the members of the oldest generation that could possibly take the gift. See August 15, 2016 Memorandum of Attorney Droney [#206], pp. 5-6; August 23, 2016 Report of Attorney O'Connell [#211], p. 3.
Attorney James K. Robertson, the guardian ad litem for the minor, unborn and unascertained beneficiaries who are descendants of the Harvey Hubbell V and William Hale Hubbell, argues that Trust principal should be divided into three equal shares (representing the three children of Harvey Hubbell, III) to be distributed to the then-living descendants of each of these three stirpital lines, assuming that there are living descendants for all three of these lines at the time the Hubbell Family Trusts terminate. This position is consistent with that of the defendants William Hale Hubbell and William Hale Lyon Alarcon Hubbell and the Hubbell-Lugovich defendants in their respective motions. See August 15, 2016 Report of Attorney Robertson [#207], pp. 6-7.
The court held oral argument on the motions on November 23, 2015, and, after the reports of the guardians ad litem, on October 17, 2016.
II. STANDARD OF REVIEW
A. Summary Judgment Generally
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013) .
B. Interpretation of Trust Instruments
" If a [trust instrument] is unambiguous within its four corners, intent of the parties is a question of law requiring plenary review . . . Where the language of the [trust instrument] is clear and unambiguous, the [instrument] is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . Similarly, any ambiguity in a [trust instrument] must emanate from the language used . . . rather than from one party's subjective perception of the terms . . .
" If, however, the trust instrument is an incomplete expression of the settlor's intention or if the meaning of the writing is ambiguous or otherwise uncertain, evidence of the circumstances and other indications of the transferor's intent are admissible to complete the terms of the writing or to clarify or ascertain its meaning . . ." (Citation omitted; internal quotation marks omitted.) Palozie v. Palozie, 283 Conn. 538, 547, 927 A.2d 903 (2007).
" The issue of intent as it relates to the interpretation of a trust instrument . . . is to be determined by examination of the language of the trust instrument itself and not by extrinsic evidence of actual intent . . . The construction of a trust instrument presents a question of law to be determined in the light of facts that are found by the trial court or are undisputed or indisputable . . . [W]e cannot rewrite . . . a trust instrument. The expressed intent must control, although this is to be determined from reading the instrument as a whole in the light of the circumstances surrounding the . . . settlor when the instrument was executed, including the condition of [her] estate, [her] relations to [her] family and beneficiaries, and their situation and condition. The construing court will put itself as far as possible in the position of the . . . [settlor, ] in the effort to construe . . . [any] uncertain language used by [her] in such a way as shall, conformably to the language, give force and effect to [her] intention . . . But [t]he quest is to determine the meaning of what the . . . [settlor] said and not to speculate upon what [she] meant to say." (Citation omitted; internal quotation marks omitted.) Spencer v. Spencer, 71 Conn.App. 475, 482, 802 A.2d 215 (2002).
III. ANALYSIS
Simply put, the issue which this litigation seeks to resolve is which generation of the descendants of Harvey Hubbell III should serve as the root, or stirpe, for the required per stirpes distribution of the principal of these two trusts. See, Hartford Bank & Trust Co. v. Thrall, 184 Conn. 497, 505, 440 A.2d 200 (1981) (" When a stirpital distribution is directed, it is necessary to determine who are the heads of the respective stirpes").
The plaintiffs argue that the heads of the stirpes should be the six grandchildren of Harvey Hubbell, III " because: (1) the stirpital division should be made among the members of the first generation that could possibly inherit the gift, i.e., those that take it directly (the grandchildren); (2) the bequest of principal is a class gift to Harvey Hubbell III's grandchildren, and members of a class share equally; (3) the Hubbell Family Trusts do not provide that income had to be shared equally among Harvey Hubbell, III's children, undermining any inference that the children should be treated equally posthumously; (4) the 'per stirpes' language means that if a grandchild dies prior to distribution, that grandchild's issue would take the grandchild's share; and (5) Harvey, III treated his grandchildren equally in his testamentary trust, which was established at a time when he could have amended the relevant language in the Hubbell Family Trusts." (Plaintiffs' Motion for Summary Judgment [#170], p. 1.)
The moving defendants argue that the heads of the stirpes should be the three children of Harvey Hubbell, III. This method of distribution is required, according to the moving defendants, because the trusts' unambiguous language of both trusts mandates that method of distribution, stirpital division at the generation below the testator or other designated person is the default rule in Connecticut, and no express language in or circumstances relevant to either the Roche Trust or the Hubbell Trust indicates that anything other than the default rule should apply.
A. Is the phrase " to the issue of the grantor, then living, per stirpes" ambiguous or otherwise uncertain?
It is not disputed that the trust expires upon the death of the Harvey Hubbell, III's children, and two of his grandchildren. The parties essentially dispute whether the term " per stirpes" unconditionally signifies that the " designated first takers" are the lineal descendants immediately following the grantor, meaning Harvey Hubbell, III's three children are the " stirpital roots, " or whether it can skip a generation, and begin with Harvey Hubbell III's six grandchildren. The plaintiffs argue that because the grantor excluded his children from receiving from the trust res, he intended for his grandchildren to be the designated first takers. They further contend that the grantor's intent is the single most important factor in determining the outcome of this declaratory judgment, and because per stirpes merely signifies a line of descent generally, it has no bearing on which generation of descendants are the designated first takers. The defendants argue that the term per stirpes is unambiguous, whereby the grantor's children are the first takers notwithstanding the fact that they could not take from the principal.
1. Per Stirpes Distribution
" Per stirpes means literally by roots or stock or by representation." Hartford National Bank and Trust Co. v. Thrall, 184 Conn. 497, 505, 440 A.2d 200 (1981). " [P]er stirpes has a common legal meaning, indicating that the devisees or legatees take by right of representation of the devisee" or legatees' deceased ancestor . . . In other words, under a method of per stirpal distribution, a child takes his deceased parent's gift by representation, and the children of living parents take nothing." Holbrook v. Henry, Superior Court, judicial district of Waterbury, Docket No. 0118618 (July 29, 1994, Sylvester, J.) (12 Conn.L.Rptr. 213, ). " Jurisdictions in the United States . . . have tended toward a construction in favor of a per stirpes division and have construed 'issue, ' when its meaning is unrestricted by the context, as including all lineal descendants in the order in which they would be entitled, at the death of the ancestor, to take his property under the law of intestate succession . . . A like construction of the word 'issue' has, for many years, been adopted by [Connecticut] . . . [I]n the absence of any direction to the contrary, we have uniformly held . . . that the per stirpes rule of distribution should be adopted." (Citations omitted; internal quotation marks omitted.) Warren v. First New Haven National Bank, 150 Conn. 120, 125-26, 186 A.2d 794, 796-97 (1962). Thus, the plain meaning of the terms " issue" and " per stirpes" in the trust instruments require a per stirpes distribution of the trust principal upon expiration of the trust term.
" Under a stirpital distribution, each deceased member of one generation is represented by his descendants of the next succeeding generation. When a stirpital distribution is directed, it is necessary to determine who are the heads of the respective stirpes." Hartford National Bank & Trust Co. v. Thrall, supra, 184 Conn. 505. Thus, the next question is who heads the respective stirpes under the trusts in the present case. According to § 28.2 of the Restatement (Second) Property, " If a gift is made to a class described as the 'issue' or 'descendants' of a designated person, or by a similar multigenerational class gift term, in the absence of additional language or circumstances that indicate otherwise . . . (3) the initial division into shares will be on the basis of the number of class members, whether alive or deceased, in the first generation below the designated person."
Comment (b) to § 28.2 elaborates. It states that " if a gift is made to the 'issue' or 'descendants' of a designated person, in the absence of additional language or circumstances that indicate otherwise, the initial division of the subject matter is made into as many shares as there are issue, whether living or not, of the designated person in the first degree of relationship to the designated person. Each issue in the first degree of relationship who survives to the date of distribution takes one share of the subject matter of the gift to the exclusion of any of such first degree issue's descendants. The share of an issue of the first degree who does not survive to the date of distribution is divided into as many shares as there are descendants, whether living or not, of that deceased issue who are in the second degree of relationship to the person whose issue are designated. Such issue in the second degree of relationship that survive to the date of distribution each take one share resulting from such division to the exclusion of their respective descendants. The share of an issue of the second degree who does not survive to the date of distribution is divided into as many shares as there are descendants, whether living or not, in the third degree of relationship to the designated ancestor who are also descendants of the deceased second degree descendant, etc. This is referred to as a per stirpes plan of distribution." 3 Restatement (Second) Property, Donative Transfers § 28.2, comment (b), p. 255 (1988).
At least one judge of the Superior Court has adopted the Restatements' position. In Citytrust v. Farmer, Superior Court, Docket No. CV-90-269875-S (October 19, 1992, Lewis, J.) (7 Conn.L.Rptr. 496, 497-99, ), the court determined, regarding a trust instructing the trustee " during the lifetime of my niece, JANET S. COOPER, to pay the entire net income to her and at her death to pay the principal to the then living lineal descendants of my brother, THOMAS R. COOPER, per stirpes, " that, " in light of no contrary expression by the testator, the assets of the trust should be divided equally among the five children of Thomas R. Cooper as the heads of stirpes, to be distributed per stirpes among the lineal descendants . . ."
Similarly, under the Uniform Probate Code § 2-709, " [i]f a governing instrument calls for property to be distributed 'per stirpes, ' the property is divided into as many equal shares as there are (i) surviving children of the designated ancestor, and (ii) deceased children who left surviving descendants. Each surviving child, if any, is allocated one share. The share of each deceased child with surviving descendants is divided in the same manner, with subdivision repeating at each succeeding generation until the property is fully allocated among surviving descendants." The second comment to this section provides, " Subsection (c)'s definition of 'per stirpes' accords with the predominant understanding of the term. In 1993, the phrase 'if any' was added to subsection (c) to clarify the point that, under per stirpes, the initial division of the estate is made at the children generation even if no child survives the ancestor." Additionally, Uniform Probate Code § 2-708 provides: " If a class gift in favor of " descendants, " " issue, " or " heirs of the body" does not specify the manner in which the property is to be distributed among the class members, the property is distributed among the class members who are living when the interest is to take effect in possession or enjoyment, in such shares as they would receive, under the applicable law of intestate succession, if the designated ancestor had then died intestate owning the subject matter of the class gift." As Citytrust, supra, 7 Conn.L.Rptr. 496, noted, " under Connecticut's intestate statutes, General Statutes § § 45a-438 and 45a-439, the stirpital division is made at the first generation."
Connecticut has yet to adopt the Uniform Probate Code; In re Andrews' Appeal from Probate, 78 Conn.App. 441, 452, 826 A.2d 1267 (2003); and our courts has treated it both favorably and negatively. Compare Ruotolo v. Tietjen, 93 Conn.App. 432, 449-50, 890 A.2d 166 (2006), aff'd, 281 Conn. 483, 916 A.2d 1 (2007) (citing Uniform Probate Code as persuasive authority), with Litevich v. Probate Court, Superior Court, judicial district of New Haven, Docket No. CV-12-6031579-S, (May 17, 2013, Wilson, J.) (declining to follow Uniform Probate Code).
General Statutes § 45a-438(a) provides: " After distribution has been made of the intestate estate to the surviving spouse in accordance with section 45a-437, the residue of the real and personal estate shall be distributed equally, according to its value at the time of distribution, among the children, including children born after the death of the decedent, as provided in subsection (a) of section 45a-785, and the legal representatives of any of them who may be dead, except that children or other descendants who receive estate by advancement of the intestate in the intestate's lifetime shall themselves or their representatives have only so much of the estate as will, together with such advancement, make their share equal to what they would have been entitled to receive had no such advancement been made."
Thus, under the Uniform Probate Code, the Restatement, and Connecticut law, a trust leaving the principle to the issue of the grantor than living, per stirpes or to the grantor's issue then living per stirpes, would require a per stirpes distribution with the heads of the stirpes at the generation below the grantor.
The words " then living" do not create any ambiguity as to the per stirpes distribution or the heads of the stirpes. Rather, they simply designate the issue who are entitled to be beneficiaries of the estate, namely only those who are then living when the trust term ends. As the Citytrust court stated when interpreting those same words in the phrase " pay the principal to the then living lineal descendants of my brother, THOMAS R. COOPER, per stirpes, " " use of the words 'then living' imposes a requirement of survival on said lineal descendants and, thus, is a condition precedent to receipt of the gift. Restatement of Property § 250 (1940); 3 Powell on Real Property § 328 (1987); Travis v. Wolcotville School Soc., 113 Conn. 618, 631-32, 155 A. 904 (1931)." Citytrust v. Farmer, supra, 7 Conn.L.Rptr. 498, .
Thus, the plain meaning of the words " to the issue of the grantor, then living, per stirpes" and " to the grantor's issue then living, per stirpes" are to require a distribution of the principal to the decedents of the grantor who are alive at the time the trust term ends per stirpes with the heads of the stirpes at the generation directly below the grantor.
The plaintiffs also argue that because the grantors set the trust terms such that they do not end until all the Harvey Hubbell III's children are deceased, the children could not have served as the heads of the stirpes. The plaintiffs contend that, where " a testator excludes children and directs a gift to grandchildren, then those grandchildren do not take as 'representatives' of their parents, because the parents had no right to the gift that they could pass to descendants." The problem with the plaintiffs' argument is that the trust instruments in the present case do not meet the plaintiffs' own test for the grandchildren being the stirpital root. According to the plaintiffs, if " a testator excludes children and directs a gift to grandchildren, then those grandchildren do not take as 'representatives' of their parents." (September 30, 2016 Memorandum [#172], p. 23; emphasis added). This requirement, that the gift be directed to the grandchildren, is not present in the trust instruments in the present case, both of which provide that the gift go to the grantor's " issue." The term " issue" " includ[es] descendants of every degree." Warren v. First New Haven National Bank, supra, 150 Conn. 125.
This general gift to the grantor's issue is in direct contrast to the language in the trusts and estates in the cases upon which the plaintiffs rely. In each of those cases the gift is directed at a particular class or group of persons. Hartford National Bank & Trust Co. v. Thrall, supra, 184 Conn. 501 (" [u]pon the death of my said children . . . and of my said grandchild . . . said trust shall terminate, and I do then give, devise and bequeath said the rest, residue and remainder of my estate to their children, if any they have, as a class, to be divided among them per stirpes, share and share alike, to them and to their heirs forever" [emphasis added; internal quotation marks omitted]); Hartford-Connecticut Trust Co. v. Beach, 100 Conn. 351, 356-57, 123 A. 921 (1924) (" the remaining principle . . . shall be distributed equally to all my grandchildren and the issue of such deceased grandchildren as may be born during my lifetime, if any, they to take per stirpes and not per capita " [emphasis altered; internal quotation marks omitted]); Post v. Jackson, 70 Conn. 283, 283-84, 39 A. 151 (1898) (" I . . . bequeath to my nephews and nieces (they being my lawful heirs) all the rest and residue and remainder of my property, real and personal" [emphasis added; internal quotation marks omitted]); Farnam v. Farnam, 53 Conn. 261, 263, 2 A. 325, 333 (1885) (" I . . . bequeath all the estate . . . to my grandchildren who shall then be living, to be equally divided among them per capita and not per stirpes, and to their heirs forever" [emphasis altered; internal quotation marks omitted]); Smith v. Thayer, 28 Ill.2d 363, 365, 192 N.E.2d 375 (1963) " [u]pon the death of my said daughters in case a child or children survive them, it is my will and I hereby give, devise and bequeath to such child or children, their heirs and assigns forever, all my said trust estate" [emphasis added; internal quotation marks omitted]); In re Title Guarantee & Trust Co., 159 A.D. 803, 806, 144 N.Y.S. 889 (1913), aff'd, 212 N.Y. 551, 106 N.E. 1043 (1914) (" pay over the principal thereof unto the children of the said Charles P. Buchanan, then living and the issue of such as may have died leaving issue then surviving, per stirpes and not per capita" [emphasis added; internal quotation marks omitted]). Unlike in all these case, where there is a gift directed to a particular class or generation, in the present case the gifts are to the grantors' descendants generally.
The court's reasoning in Post v. Jackson, supra, 70 Conn. 286-87, illuminates this distinction between the language in the cases cited by the plaintiffs and the trusts in the present case. In interpreting the language " to my nephews and nieces (they being my lawful heirs) all the rest and residue and remainder of my property, real and personal, " the Post court wrote, " If the language had been, 'I give, devise, and bequeath to my nephews and nieces the rest and residue and remainder of my estate, ' etc., there would have been a complete disposition of his estate, and there would have been no thought other than that the testator gave his estate to his nephews and nieces as a class, and that they each took in equal share; that is, that there should be a per capita distribution of the estate among them. If the language had been, " I give, devise, and bequeath to my lawful heirs all the rest, residue, and remainder of my estate, " although (as we know from the facts admitted in the answer) the estate would go to the same persons as in the former supposition, it would go to them in their character as heirs, and not in their character as nephews and nieces, and then there would be a per stirpes distribution among them ." (Emphasis added; internal quotation marks omitted.) Id. Similarly, the principal in the trusts in the present case is gifted to the issue of the grantor and each takes as an issue with a per stripes distribution among them not as a class per capita.
The language of the will is unambiguous with respect to the method of distribution of the trust's principal, which is per stirpes with the heads of the stirpes at the generation below the grantor. Thus, as there is no ambiguity in the trust instrument in this reject, no genuine issue of material fact exists as to the method of distribution of the trusts and the moving defendants are entitled to judgment as a matter of law.
2. Class Gifts to Issue, Per Stirpes
Despite the evident meaning of " per stirpes" the plaintiffs argue that the language of the trusts indicates that it is a class gift, where per stirpes distribution is not presumed. UPC § 2-708 provides: " If a class gift in favor of 'descendants, ' 'issue, ' or 'heirs of the body' does not specify the manner in which the property is to be distributed among the class members, the property is distributed among the class members who are living when the interest is to take effect in possession or enjoyment, in such shares as they would receive, under the applicable law of intestate succession, if the designated ancestor had then died intestate owning the subject matter of the class gift." The comment then states: " This new section tracks Restatement (1st) of Property § 303(1), and does not accept the position taken in Restatement (Second) of Property, Donative Transfers § 28.2 (1988), under which a per stirpes form of distribution is presumed, regardless of the form of distribution used in the applicable law of intestate succession."
Although in its comment, the drafters of the UPC rejected the provision of 1 Restatement (Second), Property, Donative Transfers § 28.2(3) (1988), stating: " If a gift is made to a class described as the 'issue' or 'descendants' of a designated person, or by a similar multigenerational class gift term, in the absence of additional language or circumstances that indicate otherwise, . . . the initial division into shares will be on the basis of the number of class members, whether alive or deceased, in the first generation below the designated person, " this provision has been cited within this state. Citytrust v. Farmer, Superior Court, judicial district of Fairfield, Docket No. CV-90-269875-S (October 19, 1992, Lewis, J.) (7 Conn.L.Rptr. 496, ). Restatement (Third), Property, Wills and Other Donative Transfers, § 14.3 (2004) similarly provides: " Unless the language or circumstances establish that the transferor had a different intention, the term 'issue' or 'descendants' means the designated ancestor's descendants of the first and more remote generations." Restatement (First), Property § 303, comment (f) (1940), after which the UPC and Restatement (Third) is modeled, provides: " When a limitation is made to the 'issue of B, ' or to the 'descendants of B, ' and all of B's children are dead, but grandchildren of B are alive, a problem arises as to whether these grandchildren of B take equal shares or take as representatives of their respective parents. This is determined in any state in the same manner as the similar problem of intestate succession is determined in that same state."
First, examining Connecticut's intestacy statute, 1 Restatement (Third), Property, Wills and other Donative Transfers § 2.3(b) (2003), entitled " Intestate Share of Surviving Descendants, " provides: " The decedent's surviving descendants take by representation. There are several systems of representation." The comments describe the several systems of representation, and most relevantly comment d describes strict per stirpes. It states that although General Statutes § 45a-438, Connecticut's intestacy statute, does " not use the term 'per stirpes' in the body of the text, " it seems " to describe that system."
General Statutes § 45a-438(a) provides: " After distribution has been made of the intestate estate to the surviving spouse . . . the residue of the real and personal estate shall be distributed equally, according to its value at the time of distribution, among the children, including . . . the legal representatives of any of them who may be dead . . ." Regardless of its citation to the Restatement (Second), supra § 28.2 rather than UPC § 2-708, the court in Citytrust v. Farmer, supra, was reaffirming that " under Connecticut's intestate statutes, General Statutes § § 45a-438 and 45a-439, the stirpital division is made at the first generation."
Several other cases support of this proposition. Beginning with the earliest, our Supreme Court of Errors concluded that the testator's " brothers' and sisters' children represent their parents, and take per stirpes the share their parents would take if living; thus making the shares of the nephews and nieces to vary according to the number of children of each brother or sister." Cook and wife v. Catlin and others, 25 Conn. 387, 391-92 (1856). Nearly seventy years later, the court explicitly stated: " The next question is whether the descendants of any deceased child or grandchild take per stirpes by right of representation of the deceased ancestor, or per capita. On this point the will contains no explicit direction, and in the absence of any direction to the contrary we have uniformly held in analogous cases that the per stirpes rule of distribution should be adopted." (Emphasis in original.) Stamford Trust Co. v. Lockwood, 98 Conn. 337, 345, 119 A. 218 (1922), overruled on other grounds by Connecticut Bank & Trust Co. v. Coffin, 212 Conn. 678, 563 A.2d 1323 (1989). A decade after that, the Supreme Court of Errors reaffirmed that " division of the estate among [lineal descendants] should be per stirpes and not per capita." Daniels v. Daniels, 115 Conn. 239, 243, 161 A. 94 (1932). Overall, our courts have " held in numerous cases that, in the absence of any direction to the contrary, the per stirpes rule of distribution should be adopted." E.g., Mooney v. Tolles, 111 Conn. 1, 12-13, 149 A. 515 (1930).
Section 45a-438 was enacted in 1949, and subsection (a) has changed very little since. Although many of these cases predate the enactment of the statute, there is no indication that the default rule of applying strict per stripes has changed, as further illustrated by the comment d in Restatement (Third), supra § 2.3. Therefore, applying UPC § 2-708, or any version of the Restatement, the Roche and Hubbell trusts do not appear ambiguous. As illustrated, Connecticut's intestacy statute is likely irrelevant given that the grantor explicitly stated that distribution was to be per stirpes. See, e.g., Citytrust v. Farmer, supra, Superior Court, Docket No. CV-90-269875-S, (grantor's use of per stirpes demonstrated intent); Bank of New England, N.A. v. McKennan, 477 N.E.2d 170, 174, 19 Mass.App.Ct. 686 (1984) (same). Even if the trust instruments did not use those words, the result would be the same considering that strict per stripes is the default intestacy distribution scheme in this state.
3. Hartford National Bank & Trust Co. v. Thrall
Hartford National Bank & Trust Co. v. Thrall, 184 Conn. 497, 440 A.2d 200 (1981), merits its own discussion because, while it may seem contrary to the rules of construction stated above, it can be reconciled with the unambiguous definition of per stirpes and the rule regarding class gifts. In Thrall, the grantor's instructions provided: " Upon the death of my said children [Broder and Spencer, Jr.] and of my said grandchild [Goldthwaite] said trust shall terminate, and I do then give, devise and bequeath said the rest, residue and remainder of my estate to their children, if any they have, as a class, to be divided among them per stirpes, share and share alike, to them and to their heirs forever." Id., 501. The grantor's grandchild and her brother's four children argued over the distribution scheme.
First, the court was satisfied that the testator's intent was for the stirpital line to begin with the grandchildren, rather than with the testator's children, because the instructions were specific in this regard. Next, the court stated: " The creation of a class gift by a testator means distribution is made on a per capita basis. Under such a distribution, the trust assets are divided into as many shares as there are members of the class and one of these shares is allocated to each member." Id., 504. The court cited to two cases to support that class gifts are distributed per capita unless otherwise expressed in the will or trust. In Hartford-Connecticut Trust Co. v. Beach, 100 Conn. 351, 360, 123 A. 921 (1924), the court states that the combination of this rule with " the expression in the provision in question that the property 'shall be distributed equally' makes the intent of the testatrix as to a per capita distribution practically beyond question." In Hoadley v. Beardsley, 89 Conn. 270, 283, 93 A. 535 (1915), the court likewise states " the division should be made equally between the children, dictates that the division should be per capita." (Emphasis in original.)
The court further stated that " where a gift to children is to take effect only after the deaths of all the life tenants, so that the whole property goes over together, instead of in separate shares at different times, the remainder persons take as members of a single class, and hence per capita." Here, the court cites to 3 Restatement (First), Property § 301(a) (1940), which provides in relevant part: " When a conveyance creates a class gift by a limitation in favor of a group described as 'B and his children, ' or as 'B and the children of C, ' or as 'children of B and children of C, ' . . . then distribution to the members of the class is made upon a per capita basis except to the extent that a different mode of distribution is required . . . for the effectuation of another and different intent of the conveyor found from additional language or circumstances . . ." Comment f discusses " corroborative factors, " such as the words " equally, " and in Thrall, " share and share alike."
These rules seemingly do not apply to the present case. The trust language states that distribution should be made " per stirpes, " evincing an intent inconsistent with a per capita distribution. Furthermore, these cases as well as Restatement (First), supra § 301(a), are distinguishable as the trusts in this case was solely to the grantor's issue, rather than multiple classes. Instead, Restatement (Second) supra § 28.2, Restatement (Third), supra § 2.3, UPC § 2-708, and even our rules of intestacy all indicate that per stirpes is the default on gifts to " issue."
Beyond this, cases have reached contrary conclusions. E.g., Warren v. First New Haven National Bank, 150 Conn. 120, 127, 186 A.2d 794 (1962). Although this decision precedes Thrall, the court cited the Restatement (First), supra § 303(1), and stated: " There remains for consideration only the question whether the use of the words " share and share alike" indicates an intent to require a per capita rather than a per stirpes distribution. We think it does not. With respect to the expression of an intent to direct a per capita distribution, the authors of the Restatement comment as follows: [T]he otherwise applicable rule of distribution is made inapplicable if a 'contrary intent of the conveyor is found from additional language or circumstances.' Such a finding is normally proper when the limitation directs that the issue (or descendants) of B shall take per capita and not per stirpes . . . In the case before us, there is no express direction that the distribution be made per capita, nor are the individual members of the class of takers described by name. The use of the words 'share and share alike' does not indicate an intent by the testatrix to vary the application of the general rule." (Citation omitted; internal quotation marks omitted.) Id.
As mentioned, per capita distribution is the default rule when the class gift is made to more than one class, such as " to the children of A" and " to the children of B, " and per capita may also be applicable when the grantor expresses such an intent. E.g., Hoadley v. Beardsley, supra, 89 Conn. 282-83.
4. " Issue"
" In a gift to the 'issue' or 'descendants' of a certain person, these terms are understood by reference to the definition and constructional rules for the term 'children.'" 3-30 Powell on Real Property (2004) § 30.08, p. 30-81. " When the donor of property describes the beneficiaries thereof as 'issue' or 'descendants' of a designated person, the primary meaning of such class gift term is determined by substituting in place of the class gift term the words 'children' . . . It is assumed, in the absence of language or circumstances indicating a contrary intent, that the donor adopts such primary meaning. Restatement (Second) of Property (Donative Transfers) (1988) § 25.9. As stated by our Supreme Court, " [t]he primary meaning of 'issue, ' when used in a trust or will, is 'heirs of the body, and includes descendants in every degree.'" Connecticut Bank & Trust Co. v. Coffin, 212 Conn. 678, 690, 563 A.2d 1323 (1989); see also Steele v. Leete, 27 Conn.Supp. 474, 476, 244 A.2d 824 (1968) (" The word 'issue' is ordinarily construed to mean 'children' where it has been used interchangeably by the testator with the word 'children'"); Wallace v. Wallace, 103 Conn. 122, 132, 130 A. 116 (1925) (same).
5. " Then Living"
This leads to the question regarding this clause of whether the grant becomes ambiguous or uncertain because the grantor's children are excluded from receiving the principal, and therefore cannot be " living" when the trust term ends. Connecticut courts " have held, repeatedly, that if a future event or time is annexed to the substance of the legacy or gift the vesting is postponed to the time named, but if the future time or event is annexed to the time of payment only the legacy or gift vests immediately. Where a legacy is given to a person to be paid at a future time, it vests immediately; but where it is not given until a future time it does not vest until that time." (Internal quotation marks omitted.) Belcher v. Phelps, 109 Conn. 7, 13, 144 A. 659 (1929). In other words, " [i]t is well settled that a person's right of inheritance vests at the moment of the decedent's death . . ." (Internal quotation marks omitted.) Gaynor v. Payne, 261 Conn. 585, 592, 804 A.2d 170 (2002); see also Bankers Trust Co. v. Variell, 143 Conn. 524, 529, 123 A.2d 874 (1956) (explain that this rule applies to class gifts as well).
" In a limitation purporting to create a remainder or an executory interest, a description of the intended takers as persons 'who survive, ' or who are 'living, ' or by other language of the same import, but which fails to designate the time to which such takers must survive, tends to establish the time of the termination of all preceding interests as the time to which survival is required." 3 Restatement (First), Property § 251 (1940). This limitation is therefore a means by which the class closes. E.g., 1 Restatement (Third), Property, Wills and other Donative Transfers § 15.1 (2003) . In other words, these are merely words of limitation that fix the prescribed trust term and class. McFarland v. Chase Manhattan Bank, N.A., 32 Conn.Supp. 20, 34, 337 A.2d 1 (1973). Our Supreme Court of Errors was asked: " Do the words 'then living' refer to the event of the death of the widow and the establishment of the trust as terminating the period wherein there could be additions to the class of beneficiaries, or do they refer to the time when the youngest living grandchild who might be born to the children of the testator reaches the age of twenty-five years?" Chase National Bank v. Guthrie, 139 Conn. 178, 183, 90 A.2d 643 (1952). The court answered upon the death of the widow, but regardless, it is clear that these words do not have a bearing upon what generation constitutes the designated first takers.
B. Other Trust Provisions
Article First of both the Roche and Hubbell trusts provided that the trustees " may determine, in all their absolute discretion, without any requirement upon such trustees to maintain any equality in the amounts paid to or applied to the use of the person or persons so selected by said trustees." The plaintiffs argue that because the trustees had discretion to distribute the income to the three children disproportionately, or even make any distributions to a particular child, indicates uncertainty as to Harvey Hubbell, III's intent on how to distribute the principal. In fact, it shows that he could not have been attempting to distribute the principal equally amongst his children. While it is true that certain courts have considered income in determining a settlor's intent as to the corpus; In re Trust Estate of Dwight, 909 P.2d 561, 566, 80 Haw. 233 (1995); it is not clear how the trustees' discretionary act to give each of the children equal money shows why the designated first takers would be the grandchildren. Harvey Hubbell, III, after all, did not know how many grandchildren or great-grandchildren he would have, nor does it show any uncertainty as to his intent regarding the words " to the issue of the grantor, then living, per stirpes."
It should be further noted that heirs or issue " are not to be disinherited unless the intent to do so is clear and strong." (Internal quotation marks omitted.) Connecticut National Bank & Trust Co. v. Chadwick, 217 Conn. 260, 274, 585 A.2d 1189 (1991). It is clear that an " income beneficiary" is recognized as an individual with an interest in a trust. E.g., Efthimiou v. Smith, 268 Conn. 487, 489-90, 846 A.2d 216 (2004). Therefore, although Harvey Hubbell III's children cannot take from the principal, it is unclear why this evinces an intent to skip a generational line.
Nevertheless, the plaintiffs argue that the language in the trust instruments that gives the trustees discretion to distribute the income to the three children disproportionately, or even make any distributions to a particular child, not only indicates uncertainty as to how to distribute the principal but also shows that the grantors could not have been attempting to distribute the per stirpes with the heads of the stirpes at the generation directly below the drafter. These provisions, however, merely give total discretion to the trustee to distribute income; they do not indicate that the heads of the stirpes should be the grantor's grandchildren any more than they indicate that it should be the grantor's children (or any other generation for that matter), and there is no other indication in the trust instrument that the method of distribution of the principal is in any way tied to the distribution of income.
C. Will Provisions
The plaintiffs point to Harvey Hubbell III's will as evidence that Harvey Hubbell, III intended to favor his grandchildren equally. The defendants argue that the extrinsic evidence on which the plaintiffs rely is largely inadmissible and urge the court to conclude that the distribution provisions of the Hubbell Family Trusts are clear and unambiguous, thereby eliminating the need to supplement or clarify the language by resort to other writings.
The court must examine the provisions within the four corners of the trust instrument to determine whether there is ambiguity. See, Heath v. Heath, 150 Conn.App. 199, 203-04, 90 A.3d 362, cert. denied, 312 Conn. 921, 94 A.3d 1200 (2014). " Where the language of the [trust instrument] is clear and unambiguous, the [instrument] is to be given effect according to its terms . . . If, however, the trust instrument is an incomplete expression of the settlor's intention or if the meaning of the writing is ambiguous or otherwise uncertain, evidence of the circumstances and other indications of the transferor's intent are admissible to complete the terms of the writing or to clarify or ascertain its meaning." Palozie v. Palozie, 283 Conn. 538, 547, 927 A.2d 903 (2007) (emphasis added; other alterations in original; citations and internal quotation marks omitted).
As discussed above, the distribution provisions of the Hubbell Family Trusts had a well-defined meaning when the trust instruments were both drafted and executed. By employing the " per stirpes" terminology, the grantors of the Hubbell Family Trusts are presumed to have intended a form of distribution, where, as discussed above, the designated first takers are the closest lineal descendants (Harvey Hubbell, III's children) even if all members of the closest line are deceased. A grantor is " presumed to have known the law, including any changes made after the execution of his will which might affect its provisions." Jerome v. Jerome, 139 Conn. 285, 291, 93 A.2d 139 (1952); see also Provident Bank v. Lewitt, 84 Conn.App. 204, 209, 852 A.2d 852, cert. denied, 271 Conn. 924, 859 A.2d 580 (2004) (same). Clearly, these instruments were drafted by lawyers, not laypersons. Where the wording of a will clearly indicates it was drafted by an attorney, the draftsman " may be assumed to have been familiar with accepted rules of construction as of the time the will was drawn . . ." Hartford Nat'l Bank & Trust Co. v. Birge, 159 Conn. 35, 43, 266 A.2d 373 (1970). Moreover, unlike cases such as Thrall and Beach, the grantors of the Hubbell Family Trusts did not include any language in their distribution provisions indicating an intent to import any exceptional meaning to the term " per stirpes" or to vary from the strict per stirpes scheme of distribution by, for example, skipping a generational line.
In the present case, it does not appear that the language contained in the Hubbell Family Trusts is an incomplete expression of the grantors' intentions or is otherwise ambiguous or uncertain. The language employed in the Hubbell Family Trusts is sufficiently analogous to the language which courts have frequently construed without relying upon extrinsic evidence. Thus, evidence of circumstances outside of the Trust instruments themselves, or other documents purportedly reflecting grantors' intent--such as Harvey Hubbell III's will--are not competent to interpret, clarify or vary the unambiguous terms of the Trust instrument.
IV. CONCLUSION
For the foregoing reasons, the motion for summary judgment filed by the plaintiffs Francis T. Schwerin, Jr. and Brenda Schwerin [#170] is DENIED.
The motions for summary judgment filed by defendants William Hale Hubbell and William Hale Lyon Alarcon Hubbell [#168] and defendants Harvey Hubbell, V, Lisa L. Lugovich, Richard J. Lugovich, Stephen M. Lugovich, and John D. Lugovich [#176] are GRANTED.
On the basis of the foregoing, the court finds, and enters judgment in this action in favor of the defendants and against the plaintiffs and declares as follows:
Upon the termination of August 23, 1957 Harvey Hubbell, III Trust, as amended on October 9, 1963, and the September 2, 1957 Louie E. Roche Trust, by the passing of last measuring life under said trusts, the corpus of each trust will be distributed in equal shares to the three children of Harvey Hubbell III, with living descendants of each of the three children succeeding to the shares of their deceased ancestors.
Each party is to bear its own costs.
General Statutes § 45a-439(a) provides: " (I) If there are no children or any legal representatives of them, then, after the portion of the husband or wife, if any, is distributed or set out, the residue of the estate shall be distributed equally to the parent or parents of the intestate, except that no parent who has abandoned a minor child and continued such abandonment until the time of death of such child shall be entitled to share in the estate of such child or be deemed a parent for the purposes of subdivisions (2) to (4), inclusive, of this subsection. (2) If there is no parent, the residue of the estate shall be distributed equally to the brothers and sisters of the intestate and those who legally represent them. (3) If there is no parent or brothers and sisters or those who legally represent them, the residue of the estate shall be distributed equally to the next of kin in equal degree, and no representatives shall be admitted among collaterals after the representatives of brothers and sisters. (4) If there is no next of kin, the residue of the estate shall be distributed equally to the stepchildren and those who legally represent them."