Ruick v. Twarkins

• Decision Date: 01 June 1976
• Citation: 367 A.2d 1380,171 Conn. 149
• Parties: Cecilia Phillips RUICK v. Mary TWARKINS et al.
• Court: Connecticut Supreme Court

Page 1380

367 A.2d 1380

171 Conn. 149

Cecilia Phillips RUICK v. Mary TWARKINS et al.

Supreme Court of Connecticut.

June 1, 1976.

Neal H. Jordan, Hartford, with whom was Jack A. Wall, Hartford, for appellant-appellee (named defendant).

Thaddeus W. Maliszewski, Hartford, for appellants-appellees (defendants Dorothy Drewnoski and others).

Louis B. Blumenfeld, Wallingford, with whom, on the brief, was John F. Scully, Hartford, for appellee-appellant (plaintiff).

Before HOUSE, C.J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

HOUSE, Chief Justice.

This was an action to settle title to ten acres of land in the town of East Granby and for damages and attorney's fees. The plaintiff is the mother of the three defendants, and this controversy between her and three of her four daughters concerns the daughters' claims to the one-half interest in the land previously owned by the plaintiff's deceased husband, their father. The plaintiff claims title to this contested onehalf interest by adverse possession. The defendants claim title by the law of intestate succession.

The court (David M. Shea, J.) found facts which it concluded warranted a judgment of title in the plaintiff by adverse possession but no relief in the form of damages or attorney's fees. From this judgment the defendants have appealed, making numerous assignments of error in the court's finding of certain facts, in reaching certain conclusions, and in rendering the judgment without factual support. Most of the assignments of error have been abandoned in the defendants' combined brief on their appeal. First Connecticut Small Business Investment Co. v. Arba, Inc., 170 Conn. 168, 169-70, 365 A.2d 100. The issues briefed concern whether a probate decree, allegedly void because of fraud in obtaining jurisdiction, may be used as a basis for a claim of title by adverse possession, and whether possession by a parent who is a cotenant with her children may, as against those children, furnish a basis for the parent's claim of title by adverse possession.

The plaintiff filed a cross appeal, maintaining that the court's conclusion that she had committed fraud in procuring the Probate Court decree 'was legally or logically inconsistent with the facts found.' She also made numerous assignments of error addressed to the finding but those not briefed are treated as abandoned; First Connecticut Small Business Investment Co. v. Arba, Inc., supra; and, in the ones briefed, we find a conflict in the evidence and evidence which fully supports the court's finding. We do not retry the facts of pass upon the credibility of witnesses. Marquis v. Drost, 155 Conn. 327, 330, 231 A.2d 527. Since the issue whether there was fraud in obtaining the probate decree must be resolved in order to treat adequately the defendants' appeal, we consider first the merits of the cross appeal.

From the evidence, the court found the following facts: On October 9, 1922, the plaintiff married James Hayes and had as issue of the marriage four daughters born between 1923 and 1929, the three defendants and Helen Powers. With money borrowed from the plaintiff's mother, the plaintiff and Hayes purchased at auction, as tenants in common, property in East Granby for $1000. The plaintiff and Hayes lived on the property until 1925 when they moved and lived at various addresses in Hartford and Newington. In July, 1929, Hayes left home, abandoned the plaintiff and never returned. During these difficult depression years, the family was further broken up, the plaintiff was hospitalized and the daughters became wards of the state. In 1933, the plaintiff and her daughters were reunited. Although the evidence is conflicting, the court found that during the years 1932 to 1937 the plaintiff and some of her daughters made visits to the home of Hayes' parents in New York City and often saw him there.

The court found further that the plaintiff, on June 3, 1938, applied to the Probate Court for the district of East Granby for letters of administration on Hayes' estate and, despite her knowledge to the contrary, stated on her application that he had died on or before June 27, 1930. The Probate Court granted administration of the estate based on the statutory presumption of death arising from the alleged sevenyear period of unexplained absence. General Statutes (Rev. 1930) § 4908. The inventory filed listed Hayes' only asset as a half- interest in the property in question which, for inventory purposes, was valued at $125. On July 26, 1938, the Probate Court distributed Hayes' half-interest in the property to the plaintiff in the form of a widow's allowance, and a copy of the order of distribution was recorded on the land records on August 20, 1938. No further steps were ever taken to complete the administration of the estate. At the time of the administration of the estate, all four daughters were minors but no guardian adlitem was appointed and they were not told that their mother had probated their father's estate. On August 6, 1938, the plaintiff married her present husband, Jesse Ruick, and less than one month later, on September 3, 1938, Hayes died.

On these findings, the court properly could conclude, as it did, that the decree of the East Granby Probate Court was procured by fraud on the part of the plaintiff. Smith v. Frank, 165 Conn. 200, 202, 332 A.2d 76; see Paiva v. Vanech Heights Construction Co., 159 Conn. 512, 515, 271 A.2d 69. The fraud concerned a jurisdictional fact, the asserted death of the decedent, and the decree was subject to collateral attack and to being declared null and void. killen v. Klebanoff, 140 Conn. 111, 116, 98 A.2d 520; Folwell v. Howell, 117 Conn. 565, 572, 169 A. 199; 1 Locke & Kohn, Conn. Probate Practice §§ 41, 121; see General Statutes § 45-9. The court did not find, however, and there is nothing in the record to indicate, that the plaintiff in any way influenced the Probate Court to distribute the property solely to her. In fact, her application for letters of administration listed all the daughters.

Notwithstanding the questionable validity of the probate decree, the court found the following facts relevant to the plaintiff's claim of title by adverse possession Hayes' one-half interest was distributed to the plaintiff as a widow's allowance and the certificate of distribution was recorded. Since the termination of the probate proceedings in 1938, the plaintiff has regarded herself as the sole owner of the property and has never regarded her children as having any interest. She and her present husband, Jesse Ruick, built a house on the property and moved into it in 1939 with her four daughters. She and Ruick have made other improvements on the property, including painting, aluminum siding, a barn, and a garage. The garage was converted into living quarters for Ruick's father. Portions of the property at various times have been rented and all income from rents or farming were retained by the plaintiff. In 1957, the plaintiff sold seven-eighths of an acre along the highway to the state of Connecticut. On two occasions after 1938, the plaintiff mortgaged the property. She has paid real estate taxes on it each year from the time it was purchased.

The court found further that the defendants, because of family conversations and requests by the plaintiff to sign some papers regarding the land, suspected that they had some interest in the property, but they were unaware that the interest was as cotenants. They were provided a home on the land by their mother and their stepfather until they had finished or almost finished school or were married, but all left the home prior to reaching the age of majority. Each of them was well aware of the plaintiff's claim of exclusive ownership as were neighbors and the community in general. The defendants claimed no interest in the land until 1970, when , after consulting an attorney, two of them filed a notice of claim on the land records, pursuant to § 47-33f of the General Statutes. The plaintiff first learned of any of her daughters' claims in 1972 from a newspaper clipping when, following an offer to the plaintiff to sell the property for approximately $100,000, the fourth daughter, Helen Powers, in her capacity as a real estate agent, sought to obtain a quitclaim deed from her sisters to her mother and all three sisters then asserted their claims.

The court concluded that the plaintiff had asserted her claim to be the sole owner of the property from the date she recorded the probate decree on August 20, 1938, up to the time of trial. It further concluded that the plaintiff had established the requisite ouster (exclusive possession which was open, visible and notorious under a claim of title, and without license or consent of the daughters) far in excess of fifteen years and sufficient for the plaintiff to acquire title by adverse possession. We find no error in this conclusion.

' The essential elements of an adverse possession sufficient to create title to the land in the claimant are that the owner shall be ousted of his possession and kept out uninterruptedly for a period of fifteen years, by an open, visible and exclusive possession by the claimant without the license or consent of the owner and under a claim of right.' Wadsworth Realty Co. v. Sundberg, 165 Conn. 457, 462, 338 A.2d 470, 473. By such adverse possession, the true owner is barred by a statute of limitations; General Statutes § 52-575; ¹ from making entry into the subject lands.

The gravamen of the defendants' first claim relating to the court's conclusion of adverse possession is that the fraudulently procured probate decree distributing the real estate to the plaintiff could not furnish color of title upon which to base a claim of title by adverse possession. Two observations serve to place this issue in proper perspective. Color of title is not an element of adverse possession in the absence of a statutory requirement. 3 Am.Jur.2d, Adverse...