DiSesa v. Hickey
| Decision Date | 13 January 1971 |
| Citation | 160 Conn. 250,278 A.2d 785 |
| Parties | Frank J. DiSESA, Executor (ESTATE OF Daniel F. B. HICKEY) v. Carmela HICKEY et al. |
| Court | Connecticut Supreme Court |
John W. Barnett, with whom were Samuel Gruber and Basil R. Duncan, New Haven, for appellant (named defendant).
Daniel G. Donovan, for appellee (defendant Marian Harrell).
William J. Murray, Stamford, with whom was John P. Bigda, Stamford, for appellee (defendant Harold N. Hickey and others).
Martin L. Nigro, Greenwich, for appellee (defendant DiSesa individually).
Jack H. Courage, Greenwich, for appellee (defendant Manufacturers Hanover Trust Co.).
Henry W. Pascarella, Greenwich, for appellee (plaintiff).
Bernard F. McGovern, Jr., Asst. Atty. Gen., with whom on the brief, was F. Michael Ahern, Asst. Atty. Gen., for appellee (defendant Robert K. Killian, Atty. Gen.).
Before ALCORN, C.J., and HOUSE, THIM, RYAN and SHAPIRO, JJ.
This was a suit brought by Frank J. DiSesa as executor under the will of Daniel F. B. Hickey to determine the construction of Hickey's will and the validity and effect of the dispositive provisions of a trust indenture which Hickey had entered into during his lifetime.
The basic facts are not in dispute. Hickey was a graduate of the Yale Law School and between 1911 and 1958 had actively practiced law in Connecticut. He was a trained and experienced lawyer. His first wife died in 1959, at which time he received a share of a trust which she had established in 1921, and of which Manufacturers Hanover Trust Company was trustee. Hickey discussed with one of that bank's trust officers arrangements for a trust to be created by him and while the trust agreement was in preparation he married Carmela Sassone in March, 1962. In the preparation of the trust instrument Hickey's attorney was Frank J. DiSesa who prepared the final version of the trust instrument. DiSesa was a member of the Connecticut bar and first became associated with Hickey in 1931. They were warm friends and DiSesa performed many legal and personal services for Hickey.
The trust indenture between Hickey and Manufacturers Hanover Trust Company was executed on March 19, 1962. Under its terms the trustee was to pay monthly income to Hickey in addition to such accrued income as he directed to be paid. He reserved broad powers to direct the administration of the trust and the right at any time to revoke, alter or amend it. Hickey also retained the power to invade the principal of the trust at any time. Although he did not exercise this latter power he did withdraw from the trust substantial amounts of accumulated income, including $9500 during 1966. Article second of the trust provided that upon Hickey's death, if the trust had not been sooner terminated, the trustee should distribute the trust property to such person or persons as he appointed by his last will and testament and in default of such appointment then to those persons who would take his personal estate under Connecticut law governing the distribution of intestate personal estate. 1
In March, 1962, Hickey and his wife moved to Florida but they returned to Connecticut in June, 1964, and thereafter lived in an apartment in Greenwich until Hickey's death on October 22, 1966. Starting in November, 1965, Hickey began discussing with DiSesa as his attorney the preparation of a will. At all times both of them were familiar with the provisions of the trust, including its terms providing for a power of appointment and for the disposition of the trust property in default of an exercise of the power of appointment.
On January 20, 1966, Hickey's will was executed in DiSesa's office. The will makes no reference whatsoever to the trust agreement nor to the power of appointment reserved to Hickey in article second of the trust agreement. By its terms the will directed the payment of debts, expenses and taxes, appointed DiSesa to be executor and in article second provided: 'I direct that my friend and associate of long standing, my attorney and executor * * * shall receive a total fee as my attorney and executor for administering my estate, an amount equal to fifteen percent (15%) of the gross inventory of my estate.' After bequeathing Hickey's jewelry and automobile to Mrs. Hickey, the will in article fourth devised and bequeathed 'all of the remainder of my estate, both real and personal, to my said executor, to be distributed nevertheless by him as such executor as follows': (a) one-half to Mrs. Hickey; (b) $5000 to a nephew, Harold Hickey; (c) $10,000 to a nephew, Marvin N. Hickey; (d) $10,000 to a niece, Joan; and (e) $25,000 to establish a scholarship fund with The Stamford Scholarship Foundation. Then in article fifth the will provided: 'All the rest and residue of my estate, of every kind and description not otherwise disposed of herein, I give, devise and bequeath to my niece, Marian Harrell, of 238 Elizabeth Road, San Antonio, Texas, daughter of my said late sister Jessie Standish to be hers absolutely.'
When the will was executed there was between $743,449.66 and $744,795.57 in the trust estate held by Manufacturers Hanover Trust Company. There was approximately $23,950.71 in personal property, cash and savings accounts owned jointly in survivorship by Hickey with his wife. Hickey then had approximately $28,918.14 in personal property and his own savings and checking accounts. He was seventy-seven years of age when he died, ten months after the execution of the will. At that time the trust assets amounted to $661,364.54, the property owned jointly with his wife amounted to $31,239.08 and his solely owned personal property, savings and checking accounts amounted to $25,920.58. The court's finding offers no explanation for the $82,085 decrease in the size of the trust estate between January 20, 1966, and Hickey's death on October 22, 1966, although the court did find that he 'had not transferred or disposed of any substantial amounts of assets between the time of the execution of the will and the date of his death.' At the time of his death Mrs. Hickey was his sole heir-at-law and the person who would have taken all of his personal estate under the laws of Connecticut had he died intestate. At no time did Hickey discuss with her the contents of his will or its dispositive provisions nor tell her that she would receive all or any particular amount of his estate. He did tell her that she would have nothing to worry about, that the was to be his 'heiress', and that as he was pleased with the way the bank had handled his trust, the bank would take care of her. At no time did he discuss the will with the officer of the bank in charge of the trust.
All parties in interest were made parties to the executor's suit and in addition to claims for a decree construing the will, a decree directing to whom the trust estate should be paid, and an allowance from the estate to the several parties for their expenses and counsel fees, the plaintiff sought the answers to five specific questions. 2
The court answered the questions as follows: (a) The value of the jointly-held property should be excluded in making the computations necessary to determine the amount to be received by Frank J. DiSesa under article second of said will, but all other assets, including those held in the trust, should be included. (b) The power of appointment reserved by Daniel F. B. Hickey in article second of the inter vivos trust indenture was exercised by the will as a whole, read in the light of all the surrounding circumstances. (c) The portion of the estate passing to Carmela Hickey under article fourth, subdivision (a) of the will shall be computed and paid over before setting aside the legacies provided for in the subsequent paragraphs of the will. (d) As answered in (b) above. (e) Although the trust indenture reserves extensive powers to the grantor and strongly resembles a custodial agreement, the trust indenture was a valid inter vivos trust without compliance with the execution requirements of the New York or Connecticut statute of wills.
Judgment was entered accordingly, including an allowance from the estate for the expenses of the parties and $10,000 to counsel for DiSesa as executor, $10,000 to counsel for DiSesa in his individual capacity, $6000 to counsel for Manufacturers Hanover Trust Company, $5000 to counsel for Harold Hickey, Marvin Hickey, Joan Standish and The Stamford Scholarship Foundation, $10,000 to counsel for Marian Harrell, and $11,350 to counsel for Carmela Hickey. From that judgment Carmela Hickey has taken this appeal.
Although the appeal raises many questions based on numerous assignments of error, clearly the most important ones concern the question whether the power of appointment reserved by Hickey in the trust indenture was duly exercised by the provisions of his will. Of the remaining assignments of error there are several which relate to matters bearing more or less directly upon this main question and others relate to attacks on the finding and to the admission of certain evidence.
We first consider the question as to whether the power of appointment was exercised by Hickey in his will. Some states have by statute provided that a testator whose will purports to dispose of all of his property shall be held to have exercised any power of appointment which he possessed at the time of his death unless the will expresses or implies an intent to the contrary. See note, 16 A.L.R.3d 911, 920; Restatement, 3 Property § 343. We have no such statute in this state and as this court repeated as recently as 1962 in Morgan Guaranty Trust Co. of New York v. Huntington, 149 Conn. 331, 344, 179 A.2d 604, 612: 'In Connecticut, however, the common-law rule applies * * *.' Under this rule, a testator will not be considered as having executed or having intended to execute a testamentary power of appointment unless the will contains 'a reference to the power itself or to the subject...
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