Carr v. Huber, 6890

• Decision Date: 18 April 1989
• Docket Number: No. 6890,6890
• Parties: , 53 Ed. Law Rep. 537 H. Judson CARR, Executor (Estate of Cleo M. Millerbaugh) v. Stephen T. HUBER et al.
• Court: Connecticut Court of Appeals

Page 548

557 A.2d 548

18 Conn.App. 150, 53 Ed. Law Rep. 537

H. Judson CARR, Executor (Estate of Cleo M. Millerbaugh) v. Stephen T. HUBER et al.

No. 6890.

Appellate Court of Connecticut.

Argued Jan. 4, 1989.

Decided April 18, 1989.

Daniel N. McLean, pro hac vice, with whom was Gordon M. Lucey, Stanford, for appellant (defendant St. Labre Indian School Educational Ass'n).

Eugene C. Cushman, New London, for appellee (named defendant).

John J. Carta, Jr., Groton, for appellee (plaintiff).

Before BORDEN, O'CONNELL and STOUGHTON, JJ.

STOUGHTON, Judge.

The defendant St. Labre Indian School Educational Association (St. Labre), residuary devisee and legatee under the will of the late Cleo M. Millerbaugh, appeals from the judgment rendered in an action brought for construction of the fifth paragraph of the will.

Millerbaugh died on August 25, 1979, leaving a will and first codicil that were duly admitted to probate. The plaintiff was approved as executor in accordance with the terms of the will, and he was given, in addition to other powers and duties, broad powers to sell at public or private sale real or personal property forming a part of the decedent's estate. In the fourth paragraph of her will, as amended by the codicil, Millerbaugh left bequests to her husband's children and to various other beneficiaries. In the fifth paragraph of the will, Millerbaugh directed that her house and its contents be sold, and it is the construction of that paragraph that gives rise to this appeal. The sixth paragraph of the will gave the residue of the estate to St. Labre.

The fifth paragraph of the will reads as follows: "FIFTH: If I own the house on Ferry Road in Old Saybrook, Connecticut, presently occupied by me as my home at the time of my death, I direct that said property (three acres, more or less), the house and outbuildings with all of their contents, lock, stock and barrel, be sold, preferably to someone who would appreciate its historical significance, but in any event to a buyer who meets with the approval of Celia Jacobs Stevenson, now or formerly of North Granby, Connecticut 06060.

"Stephen T. Huber of East Lyme, Connecticut, if he survives me, is to have first refusal to buy the property (three acres, more or less) and the house and outbuildings with all of their contents, lock, stock and barrel, at a price deemed reasonable to him; provided the price meets with the approval of Celia Jacobs Stevenson. I direct that Celia Jacobs Stevenson be reimbursed for any expenses which she may incur as a result of this provision, and that she also receive a reasonable fee for her services."

Huber offered $70,000 for the house and contents, and Stevenson approved that amount. The executor moved for authority to sell the house and contents at private sale. The Probate Court, after notifying the interested parties and holding a hearing, denied the application. The reasons given for denial were that the fifth paragraph was ambiguous, particularly the words "first refusal," and that the intent to benefit the charitable beneficiary could not be ignored. The Probate Court noted that since the appraised value of the property was considerably higher than the proposed sale price, a sale would result in a considerable loss to the charitable beneficiary and the proposed sale should be denied. Because the Probate Court found an ambiguity in the fifth paragraph, it directed the executor to apply to the Superior Court for an interpretation of the will. Instead of doing so, the executor appealed to the Superior Court from the denial of his application for an approval of private sale. In dismissing the appeal, the Superior Court construed the will and held that the language in fifth paragraph concerning a right of first refusal was void for uncertainty. On appeal to this court, we affirmed the judgment of the trial court but we held that the Superior Court, exercising the limited statutory jurisdiction of the Probate Court on appeal, had exceeded its jurisdiction in construing the will since that construction was not merely incidental to deciding whether to authorize a sale. Huber v. St. Labre Indian School Educational Assn., 4 Conn.App. 436, 494 A.2d 629 (1985).

The executor then instituted an action in the Superior Court seeking a construction of the fifth paragraph of the will. It is that action that is the subject of this appeal. The trial court found no ambiguity or uncertainty in fifth paragraph. It concluded that the right of first refusal gave Huber an option to purchase the house and property at a price deemed reasonable to him with the approval of Stevenson, and that this was a very clear, concise and uncomplicated expression by the testatrix of the manner in which the price was to be fixed. This appeal by St. Labre, the residuary beneficiary, followed.

St. Labre claims in essence that the trial court erred (1) in failing to find an ambiguity in the fifth paragraph, (2) in failing to find that Stevenson had breached a duty imposed upon her by the will, (3) in refusing to conclude that the findings made by the trial court in Huber v. St. Labre Indian School Educational Assn., supra, were res judicata, and (4) in concluding that the executor may consummate the sale without Probate Court approval. We find no error.

In an appeal from a decision construing a will, we must determine whether the conclusions of the trial court were correct. Cornell v. Cornell, 165 Conn. 376, 381, 334 A.2d 888 (1973). "The construction of a will presents a question of law to be determined in the light of facts which are found by the trial court or are undisputed or indisputable. Spurr's Appeal, 116 Conn. 108, 111, 163 A. 608 [1933]." Wehrhane v. Peyton, 133 Conn. 478, 484, 52 A.2d 711 (1947); see also Hershatter v. Colonial Trust Co., 136 Conn. 588, 596, 73 A.2d 97 (1950). When the facts have been found or are undisputed, nothing remains but for the trial court to exercise its legal judgment and " 'to draw its inference from the facts.... [I]n such a case the conclusion of the court can always be reviewed by the appellate court. An erroneous conclusion is an error of law and not an error in an inference of fact.' Hayden v. Allyn, 55 Conn. 280, 289, 11 Atl. 31 [1887]." Davis v Margolis, 107 Conn. 417, 421, 140 A. 823 (1928).

The primary function and duty of the courts is to ascertain the intent of the testatrix and to carry it into effect. Hartford National Bank & Trust Co. v. Thrall, 184 Conn. 497, 502, 440 A.2d 200 (1981). The same or substantially similar expressions seldom occur in different wills, and in construing a will precedents are entitled to little weight where they do not involve precisely analogous testamentary language, used by testators surrounded by like circumstances at the execution of their wills. Hartford National Bank & Trust Co. v. Harvey, 143 Conn. 233, 243, 121 A.2d 276 (1956). Where the testatrix' intent is apparent, the courts will give effect to that intent even though it may not be expressed in formal legal language. Mott v. Teagle Foundation, Inc., 156 Conn. 407, 412-13, 242 A.2d 739 (1968); Dennen v. Searle, 149 Conn. 126, 132, 176 A.2d 561 (1961). The words used by the testatrix are to be interpreted according to their ordinary meaning unless the context or circumstances indicate a different meaning. Dei Cas v. Mayfield, 199 Conn. 569, 572, 508 A.2d 435 (1986); Keogh v. Jann, 10 Conn.App. 183, 187, 522 A.2d 315 (1987); see Hartford National Bank & Trust Co. v. Devitt, 145 Conn. 384, 388, 143 A.2d 441 (1958); Bankers Trust Co. v. Pearson, 140 Conn. 332, 345, 99 A.2d 224 (1953); Budington v. Houck, 134 Conn. 72, 76, 54 A.2d 671 (1947). The intention of the testatrix is to be sought in the language used by the testatrix in light of the circumstances surrounding and known to her at the time the will was executed. Hartford National Bank & Trust Co. v. Thrall, supra. The court studies the entire will and seeks to determine the meaning of what the testatrix said, not to speculate upon what she meant to say. Id. If the testatrix has clearly expressed one intention, the court has no power to impute another to her. Colonial Bank & Trust Co. v. Stevens, 164 Conn. 31, 41, 316 A.2d 768 (1972); Hoenig v. Lubetkin, 137 Conn. 516, 523, 79 A.2d 278 (1951); iBronson v. Pinney, 130 Conn. 262, 269, 33 A.2d 322 (1943). The court may not modify a will by construction in order to make it conform to its own opinion as to a more equitable distribution. Travelers Bank & Trust Co. v. Birge, 136 Conn. 21, 26, 68 A.2d 138 (1949). The question is what intention the testatrix has expressed in the will and absent any latent ambiguity, that intention is to be determined from the will itself without the use of extrinsic evidence. Connecticut Junior Republic v. Sharon Hospital, 188 Conn. 1, 19, 448 A.2d 190 (1982). " 'The language of the will is controlling. "When the purpose of the testator is reasonably clear by reading the words in their natural sense, 'we must not be deterred by the conjecture that some remote consequences were not in the testator's mind, or might not have been quite satisfactory to him, if he had thought of them.' Holmes, J., in Dove v. Johnson, 141 Mass. 287, 290 [5 N.E. 520 (1866) ]." Anderson v. Bean, 220 Mass. 360, 363, 107 N.E. 964 [1915].' Travelers Bank & Trust Co. v. Birge, [supra]." Connecticut Junior Republic v. Sharon Hospital, supra, 188 Conn. at 20, 448 A.2d 190.

The words used in the fifth paragraph of the will direct that the house and contents be sold to a buyer approved by...