Bank of Boston Connecticut v. Brewster
| Decision Date | 10 September 1992 |
| Docket Number | No. 32518,32518 |
| Court | Connecticut Superior Court |
| Parties | BANK OF BOSTON CONNECTICUT, Trustee (ESTATE OF Phebe Warren Brewster HEALEY) v. William P. BREWSTER et al. |
Gager & Henry, for plaintiff.
William H. Clendenen, Jr., New Haven, for named defendant.
Brody & Ober, Southport and Gentile & Chiota, Bridgeport, for defendant Mary E. Greene et al.
Thomas M. Fiorentino, Asst. Atty. Gen., for defendant Richard Blumenthal, Atty. Gen.
Wiggin & Dana, for defendant American Society for the Prevention of Cruelty to Animals et al.
Robert J. Engelman, New Haven, guardian ad litem for undetermined and unborn beneficiaries.
ARTHUR H. HEALEY, State Trial Referee.
This will construction proceeding was instituted by the plaintiff Bank of Boston, Connecticut, (Bank of Boston) in its capacity as trustee 1 under the will of Phebe Warren Brewster Healey (testatrix) against a number of defendants. 2 The Bank of Boston as trustee seeks in particular the construction of certain language of the testamentary trust (the trust) set up by the testatrix Phebe Warren Brewster Healey in article thirteenth paragraph (B) of her will executed January 12, 1972. All the parties are represented by counsel and have submitted the case to this court on the basis of an executed stipulation of facts to which is attached certain exhibits. The court held a hearing and has also had the benefit of pretrial and posttrial briefs.
The stipulation of facts discloses the following. Article thirteenth of the testatrix' will is the residuary clause. Its preamble states "all the rest, residue and remainder of my estate, real, personal and mixed, of any nature whatsoever and wherever situated I give, devise and bequeath as follows...." Article thirteenth is then broken down into paragraphs designated (A), (B) and (C).
Paragraph (A) leaves one half of the residue and remainder of the testatrix' estate to her son, William Patrick Brewster. Brewster was the testatrix' son by her first marriage. Paragraph (A) of article thirteenth states in full the following:
Paragraph (B) of article thirteenth states the following: "The other one-half ( 1/2) of the rest, residue and remainder of my estate, I give, devise and bequeath to the SECOND NATIONAL BANK OF NEW HAVEN, a corporation organized and existing under the banking laws of the United States, and having its office and principal place of business in the City and County of New Haven, State of Connecticut, and WILLIAM FOX GEENTY of New Haven, Connecticut, IN TRUST, FOREVER, and for the following purposes and uses described and enumerated in the remaining paragraphs of this Article Thirteenth.
Paragraph (C) 3 of article thirteenth sets out the rights and duties of the trustees under the trust set up in paragraph (B) of that article.
As to the defendants: The named defendant, William Patrick Brewster (Brewster), is the son of the testatrix by her first marriage, her sole heir at law and a beneficiary under article thirteenth paragraph (A) of the will.
He was alive at the time the testatrix executed the 1972 will and he is still living. All four sisters-in-law named in paragraph (B) were alive at the time of the death of the testatrix in 1975. On October 30, 1988, Leonore Packard, one of the sisters-in-law died. The Bank of Boston and Geenty, as trustees, according to the stipulation "paid one-fourth of the principal of the Trust as it then existed to Ann P. Horrell, Mrs. Packard's only child." The stipulation also states that: "The value of the principal as it existed on October 30, 1988 equaled $1,124,215.48 and the value of the amount distributed to Ann Horrell equaled $281,053.87."
Thereafter, on February 9, 1991, a second sister-in-law, Constance H. Greene, died. She left her children, the defendants Mary Elizabeth Greene, Frank L. Greene and Susan G. Richards. No other children were born to or adopted by Constance H. Greene.
A third sister-in-law, Edith Healey Watts (Mrs. Harvey Leebatts), is also a defendant. Her children, Harry Lee Watts III, Constance W. Krucke and Virginia W. Fournier, are also defendants; she had no other children either by birth or adoption. Edith's grandchildren, Letitia Watts, Alison L. Watts, Carl W. Krucke, Kurt W. Krucke, John B. Krucke, Paul H. Fournier, Ann M. Fournier and Emily Page Fournier, are also defendants.
A fourth sister-in-law, Muriel Healey Oster (Mrs. Robert H. Oster), is also a defendant as are Judith O. Cushman and Robert Rush Oster. The defendant Margo Wittich, is the executrix of the estate of Jon O. Oster, the deceased child of Muriel Healey Oster. No other children were born to or adopted by Muriel Healey Oster; Muriel's grandchildren, Brooke Blackburn Cushman, formerly known as Brooke Cushman Sullivan, Jonathan Walker Cushman, Stewart Wakeley Cushman, Christopher Rush Oster, Keith Edward Oster, Robert Nelson Oster and Lawrence Franklin Oster are also defendants.
Attorney Robert J. Engelman of New Haven has been appointed guardian ad litem for those defendants who are unborn and undetermined who have an interest in this matter as possible remaindermen under the trust created by article thirteenth. His appointment in that capacity was consented to by all appearing defendants.
Seven charitable beneficiaries, 4 each of which takes specific bequests under article twelfth of the will and who are contingent remaindermen of the trust shares "devised" to the children of the sisters-in-law of the testatrix under article thirteenth have also been made defendants.
The defendant Richard Blumenthal is attorney general of the state of Connecticut.
As noted, on February 9, 1991, a second sister-in-law, Constance H. Greene, died leaving her children Mary Elizabeth Greene, Frank L. Greene and Susan L. Richards. On March 28, 1991, the trustees, Bank of Boston Connecticut and Geenty filed with the Probate Court for the district of Hamden an accounting (1991 accounting) of their actions for the period of January 1, 1990 to February 9, 1991. A copy of that 1991 accounting is attached to the stipulation of facts. Suffice it to say at this point that the 1991 accounting did state that "Mrs. Richardson L. Greene died February 9, 1991 and one-third of the market value of this trust is to be distributed to Mary Elizabeth Greene, Frank L. Greene and Susan G. Richards."
On April 26, 1991, Brewster filed an objection to this 1991 accounting with the Probate Court for the district of Hamden. A copy of this objection is attached to the stipulation of facts. In that objection, Brewster urged that the Hamden Probate Court reject the trustees proposed 1991 accounting and distribution because "it is contrary to the terms of Article Thirteenth." In doing so, he pointed out that the following portion of paragraph (B) of article thirteenth "provides in pertinent part" as follows: "Upon the death of each of the above-named sisters-in-law of my late husband, Stanhope B. Healey, the trustees shall pay one-fourth ( 1/4) of the principal of the trust created by this Article as it may then exist and any accrual or unpaid income due to said deceased sister free and discharged of trust to the children of said deceased sister, in equal shares." (Emphasis added.) Brewster's objection further stated: "The trustees, in contradiction of the express language of the Trust, propose to pay one-third of the market value of the trust to the three children of Mrs. Richardson L. Greene in equal...
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