Hall v. Schoenwetter, 15459

• Decision Date: 31 December 1996
• Docket Number: No. 15459,15459
• Citation: 686 A.2d 980,239 Conn. 553
• Court: Connecticut Supreme Court
• Parties: Marcelle HALL, Executrix (Estate of Julian Leon Altman), et al. v. Sherry SCHOENWETTER et al.

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686 A.2d 980 239 Conn. 553 Marcelle HALL, Executrix (Estate of Julian Leon Altman), et al.
v.
Sherry SCHOENWETTER et al. No. 15459. Supreme Court of Connecticut. Argued Oct. 2, 1996.
Decided Dec. 31, 1996.

[239 Conn. 554]

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Jonathan A. Flatow, Westport, for appellant (plaintiff).

Christopher T. Donohue, Danbury, for appellee (named defendant).

Before CALLAHAN, C.J., and BERDON, NORCOTT, McDONALD and PETERS, JJ.

CALLAHAN, Chief Justice.

The issue in this appeal is whether a finder's fee for the recovery of property paid to the plaintiff, Marcelle Hall, the executrix of the estate of Julian Leon Altman (decedent), by an insurer, Lloyd's of London (Lloyd's), in exchange for the surrender by the plaintiff of a violin possessed by the decedent at the time of his death should be included in his estate or should belong to the plaintiff individually. The plaintiff appeals from a judgment of the trial court that the finder's fee was required to be included in the decedent's estate. We affirm the judgment of the trial court.

This is the saga of the mysterious disappearance of a 1713 Stradivarius violin known as the "Gibson" from Carnegie Hall in 1936 and its reappearance in Bethel after the decedent's death in 1985. Although the long lost Gibson has been recovered, precisely what occurred at Carnegie Hall in 1936 remains clouded by the passage of time and a dying man's death bed equivocation. ¹

The decedent died a resident of Bethel on August 12, 1985, leaving a last will and testament. ² Thereafter, on October 15, 1985, the plaintiff, the decedent's wife, was appointed executrix of his estate. On May 15, 1986, she filed an Inventory and S-2 Succession Tax Return reflecting estate assets of $39,624.44. The Connecticut [239 Conn. 555] department of revenue services issued a certificate of no tax due on June 6, 1986, subject to the case being reopened if additional transfers were discovered. ³ Subsequently, the Bethel Probate Court ordered the plaintiff to file an interim accounting based on complaints made by the defendant, Sherry Altman Schoenwetter, the decedent's daughter and a legatee under his will. ⁴ The plaintiff filed the interim accounting on February 6, 1991. The defendant objected to the plaintiff's omission from the accounting of a finder's fee in the amount of $263,475.75 received by the plaintiff from Lloyd's in exchange for the violin.

The Bethel Probate Court conducted hearings to determine the validity of the defendant's objection. On the basis of the evidence presented, the court sustained the objection, and ordered the plaintiff to file a new accounting that included the finder's fee and to post a bond in the amount of $300,000. The plaintiff appealed from the Probate Court's judgment to the Superior Court pursuant to General Statutes § 45a-186. ⁵

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After a [239 Conn. 556] trial, ⁶ the Superior Court affirmed the Probate Court's judgment and ordered the plaintiff to include the finder's fee plus interest in the decedent's estate. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). ⁷

The Bethel probate judge made findings of fact, which the trial court adopted and supplemented with other findings gleaned from testimony received at trial. Sometime after 1970, the plaintiff began a relationship with the decedent in Washington, D.C. From the beginning of the relationship until his death, the decedent, a professional musician, possessed a violin that he played at recitals, concerts and, more often, at various restaurants and hotels. In 1983, the couple moved to Bethel. They eventually married in 1985, sometime after doctors had diagnosed the decedent as having stomach cancer. The plaintiff made several visits to the decedent, whose health was failing rapidly, at Charlotte-Hungerford Hospital in Torrington where he was receiving treatment. Shortly before he died, the decedent revealed to the plaintiff that the violin he had played throughout his life was actually a famous Stradivarius violin known as the Gibson. The Gibson had been stolen in 1936 from the dressing room of a world renowned violinist named Bronislaw Huberman while Huberman was performing [239 Conn. 557] at Carnegie Hall in New York City. Lloyd's, the insurer of the Gibson, paid Huberman approximately $30,000 to compensate him for the loss of the violin, and thereby acquired title to the instrument. The police never solved the crime.

After the decedent's death, the plaintiff obtained verification that the instrument was indeed the long lost Gibson. She then retained an attorney who negotiated the relinquishment of the violin to Lloyd's, in exchange for which Lloyd's agreed to pay the plaintiff a finder's fee of 25 percent of the net proceeds brought by the sale of the violin. On February 12, 1988, the Gibson was sold for $1,200,000. Thereafter, on February 26, 1988, Lloyd's paid the plaintiff $263,475.75 as a finder's fee.

In response to the defendant's objection to the plaintiff's failure to include the finder's fee in the decedent's estate, the plaintiff claimed that, based on statements made to her by the decedent and newspaper clippings found in the canvass case that housed the violin, it was the decedent who had stolen the violin from Huberman in 1936. ⁸ The plaintiff

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argued consequently that, because [239 Conn. 558] a thief should not benefit from his crime, neither should his estate. She contended therefore that the finder's fee should not be included among the estate's assets. Although in its memorandum of decision the trial court made no specific finding that the decedent actually had stolen the violin, the court quoted at length from the plaintiff's testimony, in which she asserted that the decedent was in fact the thief, and appeared to proceed on the assumption that the decedent had acquired the violin illegally. ⁹ The trial court concluded, however, that because the violin, no matter how acquired, had been in the decedent's possession at the time of his death, and because the plaintiff had acquired it in her capacity as executrix, she had a fiduciary duty to include the value of the finder's fee in the decedent's estate.

In her arguments to this court, the plaintiff essentially repeats those made in the trial court. The plaintiff contends that, because the decedent stole the violin, he never acquired good title to the instrument and, therefore, the finder's fee was not an asset of the estate for which the plaintiff was required to account. The plaintiff attempts to distance this case from the hornbook proposition that "possession is itself a protected property right." ¹⁰ She argues that she simply did the right thing when she returned the violin to Lloyd's, its rightful owner. We find the plaintiff's arguments unpersuasive.

Initially, we note the unsurprising paucity of case law, both in Connecticut and nationwide, pertinent to the issue before us. To reach our decision, we turn to fundamental concepts of fiduciary responsibility and [239 Conn. 559] property law. At all times subsequent to her appointment as executrix, the plaintiff served as a fiduciary for the decedent's estate. See General Statutes § 45a-199 (executrix is fiduciary); see also Papa v. New Haven Federation of Teachers, 186 Conn. 725, 745 n. 15, 444 A.2d 196 (1982) (fiduciary includes relationships such as executor and executrix). An executrix has a fiduciary responsibility "to maintain an undivided loyalty to the estate"; Ramsdell v. Union Trust Co., 202 Conn. 57, 65, 519 A.2d 1185 (1987); and must diligently represent "the rights of the heirs and distributees and also those of creditors." Finnegan v. LaFontaine, 122 Conn. 561, 567, 191 A. 337 (1937). Although executors and administrators are not trustees, they "occupy a position in many respects analogous [to trustees] ... and many of the rules determining the powers and duties of trustees apply to them." Hall v. Meriden Trust & Safe Deposit Co., 103 Conn. 226, 233, 130 A. 157 (1925). "One of the most fundamental duties of the trustee is that he must display throughout the administration of the trust complete loyalty to the interests of the cestui que trust. He must exclude all selfish interest and also all consideration of ... third persons." (Internal quotation marks omitted.) Phillips v. Moeller, 148 Conn. 361, 369, 170 A.2d 897 (1961). "A trustee must always be loyal to his trust." Conway v. Emeny, 139 Conn. 612, 621, 96 A.2d 221 (1953). Similarly, an executrix must remain loyal to the estate that she is administering and must not act out of self-interest or for the interests of parties other than the heirs, distributees, and creditors of the estate.

General Statutes § 45a-341 (a) ¹¹ requires executors and executrixes to gather, appraise,

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and inventory all [239 Conn. 560] property of the decedent's estate at the time of his death, except real property located outside the state. Section 45a-341 (a)(3) provides that the inventory of a decedent's estate shall include both tangible and intangible personal property. This court has stated that "[t]he estate of a deceased person consists of property the title to or an interest in which is derived from him...." American Surety Co. of New York v. McMullen, 129 Conn. 575, 582-83, 30 A.2d 564 (1943). "The inventory of an estate may properly contain any property which may be claimed to have belonged to the deceased when the circumstances are such as to make the matter of his title doubtful, leaving the question of title to be litigated in an ordinary action at law." Searle v. Crampton, 118 Conn. 42, 46, 170 A. 480 (1934); see also Lynch v. Skelly, 138 Conn. 376, 378, 85 A.2d 251 (1951).

Under the common law, possession of personal property raises a rebuttable presumption of ownership. ¹² [239 Conn. 561] 73 C.J.S. 237, Property § 36(b) (1983); see Savannah Bank & Trust...