Canaan Nat. Bank v. Peters

• Citation: 217 Conn. 330,586 A.2d 562
• Decision Date: 05 February 1991
• Docket Number: No. 13930,13930
• Court: Supreme Court of Connecticut
• Parties: The CANAAN NATIONAL BANK, Executor (ESTATE OF Elsie E. JUNOD) v. Marie E. PETERS et al.

Page 562

586 A.2d 562

217 Conn. 330

The CANAAN NATIONAL BANK Executor (ESTATE OF Elsie E. JUNOD) v. Marie E. PETERS et al.

No. 13930.

Supreme Court of Connecticut.

Argued Dec. 13, 1990.

Decided Feb. 5, 1991.

Jo-Ann L. Bowen, with whom, on the brief, was Edward F. Spinella, Hartford, for appellant (named defendant).

J. Michael Sconyers, Lakeville, with whom, on the brief, was Keith E. Krusz, Hartford, for appellee (defendant Alexander H. McPhee, Sr.).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and HULL, JJ.

GLASS, Associate Justice.

The sole issue in this will construction case is whether the testatrix, Elsie Junod, intended a provision in her will concerning the offer of certain property for sale to be a mere precatory suggestion or, rather, a mandatory directive. The trial court, having found the will to be ambiguous, determined that the testatrix intended the provision to be mandatory. Although we conclude that the intent of the testatrix was unambiguously expressed in her will, we too conclude that she intended the provision to be mandatory and now affirm the judgment of the trial court.

The following facts are undisputed. The testatrix executed her will on November 9, 1977, naming her niece, the named defendant, Marie E. Peters, as the residuary legatee. The testatrix died approximately nine years later, on March 10, 1986. The only disputed provision in her will is the second of four paragraphs, the sole provision pertaining to the son of the testatrix's cousin, the defendant, Alexander H. McPhee, Sr. The paragraph provides: "SECOND: I wish my home on Twin Lakes Road, Salisbury, Connecticut, together with its contents and all the land connected with same, to be offered for sale to my cousin [sic] Alexander Hector McPhee, Sr. of 89 The Waterway, Plandome Heights, Manhasset, L.I., New York 11030. I am willing to let him purchase it for the sum of Ten thousand ($10,000) Dollars. Only after his refusal in writing to do so is it to be placed on the market for sale." ¹

On October 27, 1986, in accordance with the second paragraph of the will, McPhee tendered the stated $10,000 purchase price for the Twin Lakes Road property (Twin Lakes) to the executor of the will, the plaintiff, Canaan National Bank (executor). ² Confronted with conflicting claims regarding the construction of the will, the executor commenced the underlying action seeking a judicial determination of whether the second paragraph of the will should be construed as a mandatory directive to offer Twin Lakes for sale to McPhee, and if so, at what price. ³ Peters filed an answer to the executor's complaint admitting that Twin Lakes should be offered for sale to McPhee, but claiming that it should be offered to him at the price of $47,000, its appraised fair market value. McPhee counterclaimed for an order directing the executor to convey Twin Lakes to him at the price of $10,000 stated in the will.

Reading the will in its entirety, the trial court found: "While certain language in this will may appear to be precatory at first glance, it is actually mandatory language when viewed in the context of the paragraph in which it appears. The testatrix specifically directs that the property be offered for sale to ... McPhee. To underscore the imperative nature of this order of the testatrix, she further directs that such property not be offered for outside sale until McPhee has refused in writing to purchase the property at the price specified in the will. Therefore, the language at issue is best categorized as mandatory even though a portion of the testatrix's command is phrased in language that is ordinarily precatory." The court accordingly rendered judgment that McPhee was entitled to purchase Twin Lakes for the price of $10,000 stated in the will, and that Twin Lakes was not to be offered for sale on the open market until McPhee refused in writing to purchase it for that price. ⁴

Peters appealed from the judgment to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023. Peters now challenges the court's legal conclusion that the intent of the testatrix, derived solely from the four corners of the will, was that Twin Lakes be offered for sale to McPhee for the price of $10,000. Both Peters and McPhee agree that the intent of the testatrix is unambiguously expressed in the language of the will, although each claims that the language used by the testatrix supports his or her respective position.

Peters claims that the words used by the testatrix in the second paragraph of the will are precatory, that is, "words whose ordinary significance imports entreaty, recommendation, or expectation rather than any mandatory direction...." 80 Am.Jur.2d, Wills § 1168. Particularly, she points to the words "wish" and "willing" used in the first and second sentences of the second paragraph as indicative of the testatrix's intent to recommend or suggest that the property be sold to McPhee for $10,000, but to leave the ultimate decision as to the disposition of the property within the executor's prudent discretion. Peters buttresses her claim by comparing the words "wish" and "willing" to the imperative words "order" and "direct" used by the testatrix in the first and third paragraphs of the will, respectively. ⁵ She also claims that construing the second paragraph as a precatory recommendation would be consistent with the general testamentary scheme of the testatrix, that being that Peters would receive the bulk of the estate, less debts, funeral expenses, and a single charitable gift, and McPhee would receive nothing if he did not desire to purchase Twin Lakes. We disagree.

" ' "The construction of a will presents a question of law to be determined in light of facts which are found by the trial court or are undisputed or indisputable." ...' " (Citations omitted.) Connecticut National Bank & Trust Co. v. Chadwick, 217 Conn. 260, 266, 585 A.2d 1189 (1991). Since the issue before us concerns the court's legal conclusion regarding the intent of the testatrix as expressed solely in the language of her will, we must decide that issue by determining, de novo, whether that language supports the court's conclusion. See id., 266-67, 585 A.2d 1189; Wyman v. Roesner, 439 A.2d 516, 523 n. 6 (D.C.App.1981).

Our primary objective in construing the second paragraph of the testatrix's will is to ascertain and effectuate her intent. Dei Cas v. Mayfield, 199 Conn. 569, 572, 508 A.2d 435 (1986); Hartford National Bank & Trust Co. v. Thrall, 184 Conn. 497, 502, 440 A.2d 200 (1981); Kimberly v. New Haven Bank N.B.A., 144 Conn. 107, 113, 127 A.2d 817 (1956). In searching for that intent, we look first to the precise wording employed by the testatrix in her will; Hartford National Bank & Trust Co. v. Thrall, supra; Hartford National Bank & Trust Co. v. Birge, 159 Conn. 35, 42-43, 266 A.2d 373 (1970); see First National Bank of Atlanta v. United States, 634 F.2d 212, 214 (5th Cir.1981); for the meaning of the words as used by the testatrix is the equivalent of her legal intention--the intention that the law recognizes as dispositive. Wisely v. United States, 893 F.2d 660, 665 (4th Cir.1990). "The question is not what [s]he meant to say, but what is meant by what [s]he did say." Connecticut Junior Republic v. Sharon Hospital, 188 Conn. 1, 20, 448 A.2d 190 (1982); see Hartford National Bank & Trust Co. v. Thrall, supra; Warren v. First New Haven National Bank, 150 Conn. 120, 123, 186 A.2d 794 (1962); see also Hunter v. United States, 597 F.Supp. 1293, 1295 (W.D.Pa.1984).

The meaning of the words used by the testatrix in the second paragraph of her will is not to be deduced by extracting and examining the words in artificial isolation. Lockwood v. Killian, 179 Conn. 62, 70, 425 A.2d 909 (1979); Colonial Bank & Trust Co. v. Stevens, 164 Conn. 31, 36-37, 316 A.2d 768 (1972); see Adams v. United States, 401 F.Supp. 1142, 1151 (D.Kan.1975); Read v. Legg, 493 A.2d 1013, 1016 (D.C.App.1985); First National Bank of Florida v. Moffett, 479 So.2d 312, 313 (Fla.App.1985). The words must be interpreted in light of their context within the second paragraph, and with reference to the will in its entirety. Dei Cas v. Mayfield, supra; Hartford National Bank & Trust Co. v. Thrall, supra; see Estate of Bruning v. C.I.R., 888 F.2d 657, 659 (10th Cir.1989); Estate of McMillan v. C.I.R., 670 F.2d 788, 791 (8th Cir.1982). " ' "Not only must all parts of the will be considered, but each and all its provisions should, so far as possible, be harmonized and given effect." ' " Hartford National Bank & Trust Co. v. Thrall, supra, 184 Conn. at 506, 440 A.2d 200; see Independence Bank Waukesha (N.A.) v. United States, 761 F.2d 442, 444 (7th Cir.1985); Greene v. United States, 447 F.Supp. 885, 897 (N.D.Ill.1978); Connecticut General Life Ins. Co. v. Peterson, 442 F.Supp. 533, 537 (W.D.Mo.1978); Estate of Sweet, 519 A.2d 1260, 1264 (Me.1987). "A court may not stray beyond the four corners of the will where the terms of the will are clear and unambiguous." In re Estate of Tashjian, 375 Pa.Super. 221, 229-30 n. 3, 544 A.2d 67 (1988); see Connecticut Junior Republic v. Sharon Hospital, supra, 188 Conn. at 9, 448 A.2d 190.

While the words "wish" and "willing" in the first and second sentences of the second paragraph of the testatrix's will are "primarily precatory in [their] significance"; Burley v. Maguire, 127 Conn. 242, 245, 16 A.2d 358 (1940); "[t]hese words have no invariable construction." Cumming v. Pendleton, 112 Conn. 569, 574, 153 A. 175 (1931). A particular provision in a will may be mandatory although couched in language which is not imperative in form; id., at 573, 153 A. 175; "and if, from the whole instrument, it can be seen that it expresses the definite will of the [testatrix], it is to be given that effect...." Burley v. Maguire, supra; see Davis v. Davis, 471 A.2d 1008, 1009-10 (D.C.App.1984); First United Methodist Church v. Allen, ...