Ruotolo v. Tietjen

• Decision Date: 27 February 2007
• Docket Number: No. 17640.,17640.
• Citation: 281 Conn. 483,916 A.2d 1
• Court: Connecticut Supreme Court
• Parties: Fred RUOTOLO et al. v. Riefe TIETJEN, Executor (Estate of John N. Swanson), et al.

916 A.2d 1

281 Conn. 483

Fred RUOTOLO et al. v. Riefe TIETJEN, Executor (Estate of John N. Swanson), et al.

No. 17640.

Supreme Court of Connecticut.

Argued January 8, 2007.

Decided February 27, 2007.

J. Michael Sulzbach, New Haven, with whom was Jeffrey T. Beatty, for the appellants (named defendant et al.).

Jonathan J. Einhorn, New Haven, for the appellee (defendant Kathleen Smaldone).

BORDEN, NORCOTT, KATZ, PALMER and ZARELLA, Js.

PER CURIAM.

The named defendant, Riefe Tietjen, executor of the estate of John N. Swanson, and the defendants Marion Fessenden and Geraldine Augeri, appeal, following our grant of certification, from the judgment of the Appellate Court; Ruotolo v. Tietjen, 93 Conn.App. 432, 451, 890 A.2d 166 (2006); reversing the judgment of the Superior Court on appeal from the Probate Court, which had found that our testamentary antilapse statute, General Statutes § 45a-441, was inoperative in the present case.¹ We affirm the judgment of the Appellate Court.

As set forth in the opinion of the Appellate Court, the following facts are undisputed. "On March 1, 1990, John N. Swanson executed a will. The residuary clause contained therein bequeathed, inter alia, `one-half . . . of [the residue] property to Hazel Brennan of Guilford, Connecticut, if she survives me . . . .' Brennan died on January 2, 2001, seventeen days prior to the testator's death. Brennan was the testator's stepdaughter, a relation encompassed by § 45a-441. The [defendant Kathleen Smaldone] is the child of the deceased legatee, Brennan, and is a residuary legatee in the will, and, thus, was an object of affection of the testator.

"On February 9, 2001, the will was admitted to probate. In a memorandum of decision dated April 26, 2002, the Probate Court concluded that, as § 45a-441 `is not operative,' the bequest to Brennan lapsed and passed to the intestate estate. The plaintiffs, Fred Ruotolo and Charlene Ruotolo, beneficiaries under the will, filed a motion for appeal to the Superior Court. The Probate Court issued a decree allowing the appeal. [Smaldone] thereafter filed a cross appeal. Following a de novo hearing, the court issued a memorandum of decision affirming the judgment of the Probate Court. . . ." (Emphasis added.) Id., at 434, 890 A.2d 166. The Superior Court agreed with the Probate Court that, because the bequest contained the qualification "`if she survives me,'" the testator had provided for such a contingency and, therefore, had removed the will from the ambit of § 45a-441. Id., at 435, 890 A.2d 166.

On appeal from the Superior Court, the Appellate Court examined the historical underpinnings of § 45a441, concluding that the statute is a departure from the common-law rule, under which legacies became intestate if the legatee predeceased the testator. Id., at 436-38, 890 A.2d 166. The Appellate Court found that the purpose of our modern antilapse statute is to prevent unintended disinheritance and that, as a remedial statute, it must be interpreted liberally. Id., at 439, 890 A.2d 166. Reviewing the authority of sister states, the Appellate Court considered whether the survivorship language of the will, in the present case, manifested an intent contrary to § 45a-441. Id., at 443-44, 890 A.2d 166. Noting the presumption that a testator intended his will to dispose of his entire estate; id., at 447, 890 A.2d 166; the court concluded that to establish contrary intent, and, thus, avoid application of the antilapse statute, "the testator must either unequivocally express that intent or simply provide for an alternate bequest." Id., at 450, 890 A.2d 166. In the present case, the words of survivorship, without more, were insufficient to satisfy that standard. Id.

We granted the plaintiff's petition for...