Rosenfeld v. Frank, 13345

• Citation: 546 A.2d 236,208 Conn. 562
• Decision Date: 09 August 1988
• Docket Number: No. 13345,13345
• Court: Supreme Court of Connecticut
• Parties: Beverly ROSENFELD, Executrix (ESTATE OF Dorothy R. GOLD) v. Roslyn FRANK et al. Beverly ROSENFELD v. Roslyn FRANK et al.

Page 236

546 A.2d 236

208 Conn. 562

Beverly ROSENFELD, Executrix (ESTATE OF Dorothy R. GOLD) v. Roslyn FRANK et al.

Beverly ROSENFELD v. Roslyn FRANK et al.

No. 13345.

Supreme Court of Connecticut.

Argued May 10, 1988.

Decided Aug. 9, 1988.

Linda M. Guliuzza, East Haven, for appellant (plaintiff in both capacities).

Barbara S. Miller, Bridgeport, for appellees (defendant Bernice Goldbloom et al.).

Before PETERS, C.J., ARTHUR H. HEALEY, SHEA, CALLAHAN and HULL, JJ.

CALLAHAN, Associate Justice.

This is an action involving the construction of a will and codicil executed by Dorothy R. Gold (testatrix) as it relates to the distribution of certain shares of stock devised by the testatrix to her grandchildren. The plaintiff, daughter of the testatrix, is an executrix and residuary legatee of the testatrix's will dated December 13, 1973. The defendants, Roslyn Frank and Bernice Goldbloom, are also daughters of the testatrix and are executrices and residuary legatees. The defendants, Susan Goldbloom and Michael Goldbloom (defendant grandchildren), are two of eight grandchildren of the testatrix to whom she bequeathed stock.

The plaintiff filed this appeal from a judgment of the trial court, wherein the court found that, by the terms of the will, the grandchildren were specific legatees and therefore entitled to the additional shares of stock resulting from stock splits occurring after the execution of the will, as well as the original number of shares bequeathed to them in the testatrix's will. The principal issue raised by the plaintiff on appeal is whether the trial court erred in failing to consider the legal effect of the execution of a codicil by the testatrix after the number of shares of stock she owned and bequeathed in her will increased due to stock splits.

The facts relevant on appeal were stipulated by the parties as follows: On June 16, 1983, the testatrix died a resident of Bridgeport. Both her last will and testament executed December 13, 1973, and a codicil thereto executed December 17, 1979, were admitted to probate by the Probate Court for the district of Bridgeport. The testatrix's daughters, Beverly Rosenfeld, Bernice Goldbloom and Roslyn Frank, were appointed executrices of the estate by the Probate Court in accordance with article four of the testatrix's will.

The will contains five articles. Relevant to the present appeal is article three which makes bequests of stock to each of the testatrix's eight grandchildren. The article is divided into sections (a) through (h), each of which names a single grandchild as the legatee of the stock owned by the testatrix in one of eight corporations. In contention in the present case are sections (d) and (g) of article three which state as follows: "I give, devise and bequeath the following to my grandchildren as herein set forth.... (d) To my granddaughter, Susan Goldbloom, 180 shares of The Southern Connecticut Gas Company stock.... (g) To my grandson, Michael Goldbloom, 159 shares of Texas Gas Transmission stock...."

When the testatrix executed her will she owned the exact number of shares she had listed in each section of article three. Subsequent to the execution of the will and prior to the execution of the codicil, however, changes occurred in the corporate structure of the companies whose stock was owned by the testatrix. In particular, in June, 1974, the stock in Southern Connecticut Gas Company, which was bequeathed to Susan, split three for two, and the corporation also subsequently changed its name to Connecticut Energy Corporation. ¹ In July, 1979, the stock of Texas Gas Transmission, which was bequeathed to Michael, split two for one. ² Thus, when the testatrix executed the codicil on December 17, 1979, she owned 270 shares of Connecticut Energy Corporation and 318 shares of Texas Gas Transmission. The number of shares the testatrix owned in these two corporations remained the same until her death. ³ The codicil executed on December 17, 1979, made no reference to the additional shares in either corporation resulting from the stock splits. Rather, initially it revoked an unrelated provision concerning real property in article two of the will and substituted a paragraph not in issue in this case. Article two of the codicil, however, reads: "In all other respects, I ratify and confirm and validate my Last Will and Testament of December 13, 1973, except as altered by this Codicil."

On October 10, 1984, the Probate Court determined that the additional shares resulting from the stock split passed with the original shares bequeathed to the grandchildren and ordered that the executrices "execute stock powers." The plaintiff appealed from this order and also filed suit in the Superior Court asking for a construction of the will. Since the parties and the issues were the same, the will construction suit and the appeal from the order of the Probate Court were, upon the defendants' motion, consolidated for trial. The question raised in the trial court was whether Susan and Michael, the defendant grandchildren, were entitled to receive 270 shares of Connecticut Energy Corporation stock and 318 shares of Texas Gas Transmission stock respectively, the number of shares owned by the testatrix at the time of her death, rather than the number originally bequeathed to them in the will. The trial court reviewed the case de novo and upheld the decision of the Probate Court in favor of the defendants. The court held that under the will the grandchildren were specific legatees, and therefore, entitled to the additional shares resulting from the stock split over and above the amount stated in the will. The plaintiff thereafter filed an appeal in the Appellate Court which was transferred to this court pursuant to Practice Book § 4023. We find no error.

The principal claim raised by the plaintiff on appeal is that the trial court erred in concluding that the defendant grandchildren were entitled to the shares of stock resulting from the stock splits because the court failed to consider the legal effect of the codicil executed after the stock had split. The gravamen of the plaintiff's claim is that the codicil, which makes no provision for the increase in shares resulting from the splits, evinces a testamentary intent by the testatrix to limit the grandchildren's bequests of shares of stock to the number stated in the will. The plaintiff bases her claim on the fact that the codicil has the effect of republishing the will, and thus, the testatrix's testamentary intent must be viewed exclusively from the date of its execution. According to the plaintiff, when the testatrix executed the codicil she presumably reviewed her entire estate, including the increase in shares resulting from the stock split, and her failure to make provision for the increased number of shares in the codicil is conclusive evidence that she intended to bequeath only the number of shares specifically stated in her will. We disagree.

Generally, execution of a codicil operates as a republication of a will. First National Bank & Trust Co. v. Baker, 124 Conn. 577, 583, 1 A.2d 283 (1938); Griffith v. Adams, 106 Conn. 19, 32, 137 A. 20 (1927); Carpenter v. Perkins, 83 Conn. 11, 18, 74 A. 1062 (1910); Shey's Appeal, 73 Conn. 122, 124, 46 A. 832 (1900); Giddings v. Giddings, 65 Conn. 149, 160, 32 A. 334 (1894); 79 Am.Jur.2d, Wills § 696. While republication acts to treat the will as if it had been "rewritten, re-executed, and republished at the date of the codicil"; Griffith v. Adams, supra, quoting Shey's Appeal, supra; Carpenter v. Perkins, supra; Giddings v. Giddings, supra; we have recognized that this principle is subject to the limitation that the intention of the testatrix must not be defeated by its application. First National Bank & Trust Co. v. Baker, supra; see also 79 Am.Jur.2d, Wills § 696. In First National Bank & Trust Co. v. Baker, supra, this court held that the republication of a will and codicil by a subsequent codicil did not have the effect of converting a bequest to a person named therein and described as a nephew, who had died after the execution of the will and a codicil, but prior to the testatrix's execution of a final codicil, into a bequest to the nephew's son who bore the same name.

The nephew's son in First National Bank & Trust Co. argued that, although the testatrix's final codicil failed to state that he was to take the bequest originally devised to his deceased father, the bequest, nonetheless, belonged to him because the final codicil had the effect of republishing the will and earlier codicil, thereby making a new will on the date of its execution. Since the will was, in effect, remade after his father's death, the son asserted that the testatrix, who is presumed to have wanted to avoid a nugatory gift, intended the bequest for him. Rejecting the son's argument, this court stated that while republication of the will and codicil by the final codicil was in effect the making of a new will, "[t]hat does not mean, however, that in determining the construction of the instrument the development of the testamentary intent through the will and the codicils and the circumstances surrounding their execution are to be disregarded and the whole will read as though it were all originally made at the date of the codicil. 'From a will and its several codicils, like a statute with its later amendments, the maker's full intention is to be gathered.' " Id., 124 Conn. at 583, 1 A.2d 283, quoting Giddings v. Giddings, supra. Looking to both the language of the will and extrinsic circumstances surrounding the execution of the codicil, the court rejected the nephew's son's argument that, solely because the testatrix had executed a codicil after his father's death, he was the intended beneficiary. Particularly significant was evidence of the fact that the testatrix, prior to the execution of the final codicil, recognized that changes to her will would have to be made...