Dei Cas v. Mayfield

• Decision Date: 13 May 1986
• Court: Connecticut Supreme Court
• Parties: Wilma DEI CAS, Executrix (ESTATE OF Mary B. SHAW), et al. v. Marie MAYFIELD et al.

Page 435

508 A.2d 435

199 Conn. 569

Wilma DEI CAS, Executrix (ESTATE OF Mary B. SHAW), et al. v. Marie MAYFIELD et al.

Supreme Court of Connecticut.

Argued Feb. 11, 1986.

Decided May 13, 1986.

Wesley W. Horton, with whom were Alexandra Davis, Hartford, and on brief, William R. Moller, Hartford, and Richard C. Stewart, New Canaan, for appellant (named defendant).

Sandra M. McLean, with whom was C. Ian McLachlan, Stamford, for appellees (plaintiffs).

Before PETERS, C.J., and SHEA, SANTANIELLO, CALLAHAN and MORAGHAN, JJ.

CALLAHAN, Associate Justice.

The defendant, Marie Mayfield, has appealed from a judgment rendered by the Appellate Court in favor of the plaintiff, Wilma Dei Cas. ¹ The sole issue on appeal is whether the Appellate Court erred when it construed the language of the will of William Shaw, the father of both the plaintiff and the defendant, to give his wife, and their mother, Mary B. Shaw, a fee simple absolute in realty that he owned in New Canaan, rather than a life estate with a vested remainder in the children as urged by the defendant. Dei Cas v. Mayfield, 3 Conn.App. 106, 111, 485 A.2d 584 (1985). We find no error.

The opinion of the Appellate Court describes both the underlying facts and the procedural history of this case. Id., 106-107, 485 A.2d 584. Briefly, William Shaw executed a will in 1938 and died in 1944. The relevant language of his will is as follows: "Second: I give devise and bequeath all of the property of which I die seized by the same real, personal, or mixed, or where-so-ever situated, to my beloved wife, Mary B. Shaw, for her own proper use and benefit, forever. I do this knowing that my said wife will make proper provisions for any child or children then living.

"Third: At the death of my said wife, I direct all of the property then remaining shall be divided among my children, then surviving, share and share alike.

"Fourth: In the event that my wife should die at or near the time of my decease and before my children are of legal age and able to care for themselves, I hereby appoint my brother, Richard Shaw, as their guardian. Should this happen I appoint said Richard Shaw as the executor of my last will and testament." ²

Paragraphs "Second" and "Third" of the will appear to be inconsistent on the issue of whether the will gives Mary B. Shaw a life estate or a fee simple absolute in the subject real estate. The defendant claims that Mary B. Shaw acquired only a life estate in the realty, with the power to consume it during her lifetime, but that she could not dispose of it by will on her death. It is the plaintiff's contention that Mary B. Shaw was devised a fee simple absolute, without limitation, and that she could dispose of it by will.

Mary B. Shaw died on January 15, 1981, leaving a last will and testament in which she gave the plaintiff the right to purchase from her estate, at a price greatly below market value, real estate on Ponus Ridge Road in New Canaan, the title to which she had acquired by the will of her husband William Shaw. If William Shaw's will gave Mary B. Shaw only a life estate, the disposition to the plaintiff in her will would be void. If, on the other hand, Mary B. Shaw had acquired a fee simple absolute under the terms of William Shaw's will, the disposition to the plaintiff would be valid.

The trial court held that Mary B. Shaw inherited only a life estate and therefore all the property that remained unexpended at her death passed in equal shares to William Shaw's daughters, the plaintiff and the defendant, under the terms of his will. The plaintiff appealed to the Appellate Court. The Appellate Court found error and held that, under the will of William Shaw, Mary B. Shaw had acquired a fee simple absolute in the realty. Dei Cas v. Mayfield, supra, 111, 485 A.2d 584. The defendant sought and this court granted certification. "In an appeal, after certification from the judgment of the Appellate Court, 'the focus of our review is not the actions of the trial court, but the actions of the Appellate Court. We do not hear the appeal de novo.' State v. Torrence, 196 Conn. 430, 433, 493 A.2d 865 (1985)." White Oak Corporation v. Department of Revenue Services, 198 Conn. 413, 418, 503 A.2d 582 (1986). In the present case, therefore, we need determine only whether the Appellate Court erred in concluding that Mary B. Shaw had acquired, by the will of William Shaw, a fee simple absolute in the realty in question which she could dispose of by her will.

"The cardinal rule to be followed in construing a will is to find and effectuate the intent of the testator. In seeking that intent, the court looks first to the will itself and examines the words and language used in the light of the circumstances under which the will was written. Chase National Bank v. Guthrie, 139 Conn. 178, 182, 90 A.2d 643 [1952]; First National Bank & Trust Co. v. Parish of St. Thomas' Church, 141 Conn. 489, 497, 107 A.2d 246 [1954]. To ascertain the intent of a particular provision, the will must be read as a whole to discover whether it discloses an underlying intent which should be considered in finding the meaning to be accorded to the particular language under construction. Bankers Trust Co. v. Pearson, 140 Conn. 332, 345, 99 A.2d 224 [1953]." Hartford National Bank & Trust Co. v. Devitt, 145 Conn. 384, 388, 143 A.2d 441 (1958). The apparent inconsistencies of paragraphs "Second" and "Third," therefore, must be harmonized if possible in a way that will preserve the intent of the testator. We believe that the construction given the will by the Appellate Court, which held that Mary B. Shaw received an estate which was subject to defeasance only in the event that she predeceased the testator and is therefore an absolute estate in fee simple, preserves William Shaw's intent.

We disagree, however, with the position of the Appellate Court that "the language of William Shaw's will does not involve a clause which contains an express and positive devise in fee...." Dei Cas v. Mayfield, supra, [3 Conn.App. at] 110, . We conclude, rather, that the clause contained in the second paragraph of the will which reads, "I give devise and bequeath all of the property of which I die seized be the same real, personal, or mixed, or where-so-ever situated, to my beloved wife, Mary B. Shaw, for her own proper use and benefit, forever," was clearly intended to give Mary Shaw an estate in fee simple. "An intention to pass an absolute estate in property is manifested by the direction that testator gives, devises and bequeaths it to a named person...." In re Morris' Estate, 125 N.Y.S.2d 60, 61-62 (1953). The words "give and devise," or either of them would be held sufficient to carry the fee where the estate is created by will. Burr v. Tierney, 99 Conn. 647, 651, 122 A. 454 (1923). Further, the word "forever" is appropriately used in testamentary language devising an absolute estate; see Belcher v. Phelps, 109 Conn. 7, 12, 144 A. 659 (1929); and the words "own use and benefit" when construed in conjunction with "forever" do not create an ambiguity. The customary words "heirs and assigns" are missing but they are not necessary to create a fee. Dennen v. Searle, 149 Conn. 126, 136, 176 A.2d 561 (1961); Cumming v. Pendleton, 112 Conn. 569, 573, 153 A. 175 (1931); White v. White, 52 Conn. 518, 520 (1885). Additionally, a common sense reading of the precatory language in the sentence in paragraph "Second" which reads, "I do this knowing that my said wife will make proper provisions for any child or children then living," manifests an intention on the part of the testator that his wife take a fee estate and an assumption that she would make proper provision for the children.

An accepted canon of construction is "that a clear bequest of an absolute...