DiCristofaro v. Beaudry
| Decision Date | 13 June 1974 |
| Docket Number | No. 73-115-A,73-115-A |
| Citation | 320 A.2d 597,113 R.I. 313 |
| Parties | Claire Bernier DiCRISTOFARO v. Alfred BEAUDRY et al. ppeal. |
| Court | Rhode Island Supreme Court |
This appeal marks the second time that Claire Bernier DiCristofaro (DiCristofaro) has appeared before us seeking relief from an adverse action taken in the trial court.
The litigation had its inception in DiCristofaro's filing a complaint in Superior Court seeking partition of a parcel of real estate, located in the town of Coventry, in which she claimed an undivided one-half interest in fee. In addition, she asked that a mortgage on the property be declared null and void with respect to her interest therein. The defendants are Alfred Beaudry, his wife, Mary (the Beaudrys) and the Centreville Savings Bank (Bank). The Beaudrys claim title in fee to the land in controversy. The Bank is their mortgagee.
The facts are uncontroverted. In 1966, Cecile M. Bernier was the owner of the real estate involved in the litigation. She died on March 21 of that year and in the only dispositive clause 1 of her will, she mandated that:
'All the rest, residue and remainder of my estate, real, personal and mixed, of which I shall be seized or possessed, or to which I shall be in any wise (sic) entitled at the time of my decease, including all estate, real and personal, over which I shall then have power of appointment, I devise, bequeath and appoint, absolutely and in fee simple, to my children, Richard A. Bernier and Rohald L. Bernier, in equal shares, per stirpes and not per capita.'
Her will was admitted to probate on April 11, 1966, and her son, Richard, thereafter qualified as the sole executor.
On May 25, 1966, plaintiff attached all of Richard' right, title and interest in the property in question. About nine months later, on March 6, 1967, Richard, in his capacity as executor under his mother's will, petitioned the Coventry Probate Court, under G.L.1956, § 33-12-6, P.L.1962, ch. 127, sec. 1, now G.L.1956 (1969 Reenactment) § 33-12-6, 2 '* * * for authority to Sell the interest of the deceased in the (subject) real estate * * * to raise the sum of $11,600.00 for the purpose of effecting a prompt and efficient settlement of the Estate.' The petition was granted on April 10, 1967 and on the following day Richard, in consideration of $11,600, executed and delivered an executor's deed which purported to convey a fee interest in the realty to his brother, Ronald and to Ronald's wife, Roberta, as joint tenants. They, in turn, on March 16, 1970 conveyed their entire interest in that property to the Beaudrys, who then mortgaged the property to the Bank.
About a year later, plaintiff, by then a judgment creditor of Richard's, caused the sheriff to levy an execution upon his 'estate, right, title, interest and property' in the real estate. At a sheriff's sale held on July 16, 1971, the property was sold to DiCristofaro. She received and duly recorded a sheriff's deed which conveyed to her whatever estate, right and interest Richard had in the property at the time it was attached. Relying on that deed, DiCristofaro claims ownership in an undivided one-half interest in the property at the time it was attached.
After answering DiCristofaro's complaint, defendants made a motion for summary judgment pursuant to Super.R.Civ.P. 56. Such motion was granted by the trial justice. The plaintiff appealed from that order and we sustained her position in DiCristofaro v. Beaudry, 110 R.I. 324, 293 A.2d 301 (1972). We held that the granting of the motion was improper, in that § 33-12-6 does not give unrestricted authority to sell the real estate of a testator. If the devise is specific, the statute requires the written consent of the specific devisees before a sale will be permitted. However, if the gift is general in nature, the written consent need not be obtained.
Evidentiary gaps in the affidavits in support of and in opposition to the motion prevented this court from determining whether, as a matter of law, defendants were entitled to judgment, i.e., whether the devise was general or specific. Accordingly, we remanded the matter for the issue to be determined on evidence adduced at trial.
Thereafter, a hearing was held and the trial justice ruled the devise general in nature. DiCristofaro once again appeals to this court.
DiCristofaro ergues that the language of the will clearly expresses the intent of the testatrix that her sons should receive all the real estate owned by her at the time of her death. She asserts that since the real estate was easily identifiable and ascertainable, it was described with sufficient particularity to render the devise specific.
We recognize at the outset the operation of certain established principles of the law of wills in Rhode Island. First, of course, is the rule that, unless constrained by law, the testatrix's intention governs. Davison v. Deslauriers, 109 R.I. 541, 288 A.2d 250 (1972); Goldstein v. Goldstein, 104 R.I. 284, 243 A.2d 914 (1968). Cecile M. Bernier was at liberty to make either a specific or a general devise, and hence, we must determine the issue in the light of her intention as best we can. Second, in Haslam v. de Alvarez, 70 R.I. 212, 38 A.2d 158 (1944), this court laid down guidelines for determining the character of legacies. There, we stated that:
Although here we are dealing with a devise as distinguished from a legacy, we believe that whether a devise of realty is specific or general is to be determined by the same principles that determine whether a bequest of personalty or a legacy is specific or general. 6 Bowe-Parker, Page on Wills § 48.9 at 32 (1962). Third, there is in our law a presumption which favors, in cases of doubt, that a residuary legacy be deemed general rather than specific. Rhode Island Hospital Trust Co. v. Votolato, 102 R.I. 467, 231 A.2d 491 (1967). Also, a legacy should not be construed as specific, unless it be clearly so intended. Haslam v. de Alvarez, supra. The party who argues that a gift was specific must, therefore, carry the burden of proof. With these principles in mind, we examine the merits of the appeal before us.
Upon the record before us, we see no evidence which would rebut the presumption of generalness and cause this gift to be deemed specific in nature. DiCristofaro has not carried her burden.
The plaintiff's counsel maintains that since the...
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McGee v. McGee, 78-128-A
...it is true that the party who contends the legacy is a specific one must bear the burden of proof on this issue, DiCristofaro v. Beaudry, 113 R.I. 313, 320 A.2d 597 (1974), and appellant, in her brief, characterized the twelfth clause as a bequest of a particular residuary gift, the trial j......
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In re Tetreault
...the principle that "[t]itle to real property vests immediately upon a testator's death in the devisees." DiCristofaro v. Beaudry, 113 R.I. 313, 319, 320 A.2d 597, 601 (1974). It is also well established under G.L.1956 § 33-12-6 that an executrix may move to sell real property for the prompt......
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Key Fin. Services v. Testa
...Property to himself by executor’s deed. The Defendants’ reliance on these arguments, however, is misplaced. In DiCristofaro v. Beaudry, 113 R.I. 313, 319; 320 A.2d 597, 601 (1974), the Rhode Island Supreme Court held that “[t]itle to real property vests immediately upon a testator’s death i......
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Key Fin. Services v. Testa, C.A. No. PC 05-3234
...Property to himself by executor’s deed. The Defendants’ reliance on these arguments, however, is misplaced. In DiCristofaro v. Beaudry, 113 R.I. 313, 319; 320 A.2d 597, 601 (1974), the Rhode Island Supreme Court held that “[t]itle to real property vests immediately upon a testator’s death i......