DiBiasio, In re

• Decision Date: 13 January 1998
• Docket Number: No. 96-540-A,96-540-A
• Citation: 705 A.2d 972
• Parties: In re Robert A. DiBIASIO ppeal.
• Court: Rhode Island Supreme Court

Page 972

705 A.2d 972

In re Robert A. DiBIASIO

No. 96-540-Appeal.

Supreme Court of Rhode Island.

Jan. 13, 1998.

John Stephen Petrone, Cranston, for Plaintiff.

David J. McOsker, Providence, for Defendant.

Before WEISBERGER, C.J., and LEDERBERG, BOURCIER, FLANDERS and GOLDBERG, JJ.

OPINION

PER CURIAM.

This case involves the construction of a will and codicil. The defendants, Thomas Fiore, James Fiore, and Jennie Saccoccio, are heirs at law of the testator, Vincent Fiore (Fiore). They appeal from a Superior Court order providing that upon Fiore's death, the rest, residue, and remainder of his testamentary trust vested in Joseph A. DiBiasio (DiBiasio), Fiore's nephew and the remainderman designated in his will. The court further ruled that upon DiBiasio's death the remainder of Fiore's estate would go to DiBiasio's heirs rather than revert to the defendants in their capacity as Fiore's heirs. After ordering the parties to show cause why this appeal should not be determined summarily, we conclude that no cause has been shown and proceed to decide the issues raised.

On appeal, defendants argue that the trial justice erred as a matter of law in failing to follow Fiore's clear intentions as the testator. Fiore executed a will on November 14, 1986. His will created a trust and named DiBiasio as trustee to provide for the proper care, support, maintenance, education, and welfare of Fiore's surviving sisters and brother. Upon the death of Fiore's last surviving sibling, certain cash legacies were to be distributed free and clear of the trust to Fiore's heirs, Joseph Saccoccio, Victor "Vito" Morgero, Thomas Fiore, and James Fiore. By codicil dated April 28, 1989, Fiore amended the will to add the following paragraph, designated (E):

"After making distribution to those individuals set forth in subparagraph (C) herein of the stated sums, the rest, residue and remainder of the Trust estate and assets, together with any accumulations thereto, shall be paid and distributed to my nephew, JOSEPH A. DiBIASIO, individually for his sole use free and clear of Trust."

The next subparagraph, redesignated by the codicil as subparagraph (F), provides, "Upon the distribution and division of said trust funds in manner as aforesaid, this Trust shall close and terminate and my said Trustee shall be relieved * * *."

When Fiore passed away on July 27, 1989, the trust was established with DiBiasio as trustee. However, on November 2, 1994, DiBiasio passed away, leaving two sons, Joseph A. DiBiasio (Joseph) and Robert A. DiBiasio (Robert). At DiBiasio's death at least one of Fiore's siblings was still living. On January 6, 1995, Robert filed a complaint in the Superior Court, seeking to have himself named as successor trustee. One of Fiore's nephews, Joseph Saccoccio, answered the complaint and counterclaimed to have himself appointed successor trustee. Next came the answers of Fiore's nephews, Thomas Fiore, James Fiore, and Fiore's sister, Jennie Saccoccio. Specifically Fiore's heirs claim that the language "individually for his sole use" in subparagraph (E) of the codicil demonstrates Fiore's clear intent to create a contingent remainder whereby DiBiasio's interest in the residue of the trust was dependent on his outliving Fiore's siblings. They claimed that because DiBiasio, Robert's father, had passed away, any remainder must revert to Fiore's estate and pass to them under the laws of intestacy.

All parties entered into an agreed statement of facts and further agreed to submit the matter for the trial justice's decision based only on those facts and the parties' memoranda. Thereafter, the Superior Court entered an order appointing Robert successor trustee and declaring that the rest, residue, and remainder of the estate had vested in DiBiasio at Fiore's death. Thus the court ruled that upon DiBiasio's death, his heirs, Robert and Joseph, succeeded to DiBiasio's interest.

The sole issue on appeal is whether the Superior Court erred in holding that a bequest of the rest, residue, and remainder of the Fiore trust, subject to a beneficial life estate, vests in the remainder beneficiary upon the testator's death or whether the trust res reverts to the estate if the remainderman predeceases the life tenants. This issue could have been avoided, of course, had the will provided specifically for the disposition of the rest, residue, and remainder of Fiore's testamentary trust in the event the death of DiBiasio preceded that of the life tenants.

This court's "primary objective when construing language in a will or trust is to ascertain and effectuate the intent of the testator or settlor as long as that intent is not contrary to law." Prince v. Roberts, 436 A.2d 1078, 1080 (R.I.1981); see also Fleet National Bank v. Miglietta, 602 A.2d 544, 549 (R.I.1992). "Where the language of a will expressly states the testator's intention, resort to the rules of testamentary construction is without warrant; it is when the language under consideration is susceptible of being read as disclosing alternate or contrary intentions that the rules of construction properly may be invoked." Goldstein v. Goldstein, 104 R.I. 284, 287, 243 A.2d 914, 916 (1968); see also Lancellotti v. Lancellotti, 119 R.I. 184, 191-92, 377 A.2d 1315, 1319 (1977). Ambiguous language in a will or a trust presents the trial justice with a mixed question of law and fact, and the appellate court will not substitute its judgment for that of the trial justice unless reasonable minds would be impelled to a single conclusion. Prince, 436 A.2d at 1080-81.

In Rhode Island the law favors the immediate vesting of remainders unless there is a clearly indicated intention to the contrary. Sawyer v....