Ruotolo v. Tietjen

• Decision Date: 31 January 2006
• Docket Number: No. 25239.,25239.
• Court: Connecticut Court of Appeals
• Parties: Fred RUOTOLO et al. v. Riefe TIETJEN, Executor (Estate of John N. Swanson), et al.

890 A.2d 166

93 Conn.App. 432

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

No. 25239.

Appellate Court of Connecticut.

Argued December 6, 2005.

Decided January 31, 2006.

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

Jeffrey T. Beatty, for the appellee (named defendant).

Gerald E. Farrell, Sr., Wallingford, for the appellee (defendant Stella Szollosi).

J. Michael Sulzbach, New Haven, for the appellees (defendant Marion Fessenden et al.).

LAVERY, C.J., and DRANGINIS and McLACHLAN, Js.

LAVERY, C.J.

This appeal presents a question of statutory interpretation of General Statutes § 45a-441, our testamentary antilapse statute. The appellant, Kathleen Smaldone,¹ appeals from the judgment of the Superior Court on appeal from the Probate Court, which found the statute inoperative in the present case. We disagree and, accordingly, reverse the judgment of the Superior Court.

The 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 step-daughter, a relation encompassed by § 45a-441. The appellant 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.² 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. The appellant thereafter filed a cross appeal. Following a de novo hearing, the court issued a memorandum of decision affirming the judgment of the Probate Court, and this appeal followed.

The sole issue on appeal is whether the court properly concluded that the antilapse statute does not apply. Section 45a-441 has never been scrutinized by appellate eyes and, thus, presents a question of first impression. Accordingly, our review is plenary. See Genesky v. East Lyme, 275 Conn. 246, 252, 881 A.2d 114 (2005).

Pursuant to General Statutes § 1-2z,³ we consider first the text of § 45a-441 to determine whether it is ambiguous. The statute provides: "When a devisee or legatee, being a child, stepchild, grandchild brother or sister of the testator, dies before him, and no provision has been made in the will for such contingency, the issue of such devisee or legatee shall take the estate so devised or bequeathed." General Statutes § 45a-441. The bequest in the present case specified "one-half ... of [the residue] property to Hazel Brennan of Guilford, Connecticut, if she survives me...." Because the bequest contained the condition, "if she survives me," both the Probate Court and the Superior Court concluded that a provision had been made in the will for such contingency. The appellant disagrees, arguing that because the will contained no provision as to the fate of Brennan's share in the event that she predeceased the testator, a provision had not been made in the will for such contingency. Both readings present plausible interpretations of the salient statutory language. In light of that ambiguity, we turn our attention to extratextual evidence to determine its proper meaning. See General Statutes § 1-2z.

"According to our long-standing principles of statutory construction, our fundamental objective is to ascertain and give effect to the intent of the legislature.... In determining the intent of a statute, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.... In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result." (Citation omitted; internal quotation marks omitted.) Regency Savings Bank v. Westmark Partners, 70 Conn.App. 341, 345, 798 A.2d 476 (2002). "A legislative act must be read as a whole and construed to give effect and to harmonize all of its parts." (Internal quotation marks omitted.) Hayes v. Smith, 194 Conn. 52, 58, 480 A.2d 425 (1984). In addition, "[w]here the meaning of a statute is in doubt, reference to legislation in other states and jurisdictions which pertains to the same subject matter, persons, things, or relations may be a helpful source of interpretative guidance." (Internal quotation marks omitted.) Johnson v. Manson, 196 Conn. 309, 318-19, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 813, 88 L.Ed.2d 787 (1986).

I HISTORY

At common law, when a named beneficiary under a will predeceased the testator, the share of the deceased beneficiary passed not to his descendants, but rather "lapsed." See 4 W. Bowe & D. Parker, Page on the Law of Wills (Rev. Ed. 2005) § 35.15, p. 645; see also Clifford v. Cronin, 97 Conn. 434, 438, 117 A. 489 (1922). Thus, the rule of lapse automatically conditions all devises on the survival of the legatee. "At common law, all legacies, not affected by substitutionary disposition, became intestate estate whenever the legatee died before the testator." Ackerman v. Hughes, 11 Conn.Supp. 133, 135 (1942).

As Judge O'Sullivan explained in Ackerman, "[s]ome pretty oppressive results were occasioned by these principles which frequently blocked the way for carrying out the testator's expressed intention. These injustices were most significant in those instances where the will provided legacies for close relatives." Id. To prevent such a harsh and presumably unintended result, legislatures of the United States in the late eighteenth century began crafting statutes designed to protect certain devises from lapsing.

In 1783, the Massachusetts legislature enacted the first antilapse statute. It provided: "When a devise of real or personal estate is made to any child or other relation of the testator, and the devisee shall die before the testator, leaving issue who survive the testator, such issue shall take the estate so devised, in the same manner as the devisee would have done, if he had survived the testator; unless a different disposition thereof shall be made or required by the will." 1783 Mass. Acts, ch. 24, § 8, quoted in S. French, "Antilapse Statutes Are Blunt Instruments: A Blueprint for Reform," 37 Hastings L.J. 335, 339 n. 16 (1985). "In 1810, Maryland went even further and adopted a statute that prevented lapse altogether.... These two statutes provided the basic models on which all subsequent antilapse statutes have been constructed." S. French, 37 Hastings L.J., supra, 339. In England, the Wills Act of 1837 took antilapse statutes across the Atlantic Ocean, providing that "when there was a devise or bequest to a child or other issue of the testator, and the child or issue predeceased the testator, leaving issue who survived the testator, the devise or bequest should not lapse, `but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will.'" 6 W. Bowe & D. Parker, supra, § 50.10, p. 91. Today, antilapse statutes have been enacted in every state except Louisiana. "[T]he antilapse statutes in effect across the United States vary significantly [and] so much ... that no typical or `majority' antilapse statute exists." E. Kimbrough, "Lapsing of Testamentary Gifts, Antilapse Statutes, and the Expansion of Uniform Probate Code Antilapse Protection," 36 Wm. & Mary L.Rev. 269, 271 (1994).

Although varying in scope, all antilapse statutes provide that when a particular devisee predeceases the testator, the devise does not fall into the residue or pass to the testator's heirs by intestacy, but rather descends to the issue of the predeceased devisee. "Although ... commonly called `antilapse' statutes, the label is somewhat misleading. Contrary to what the label implies, antilapse statutes do not reverse the common-law rule of lapse because they do not abrogate the law-imposed condition of survivorship.... What the statutes actually do is modify the devolution of lapsed devises by providing a statutory substitute gift in the case of specified relatives." E. Halbach, Jr. & L. Waggoner, "The UPC's New Survivorship and Antilapse Provisions," 55 Alb. L.Rev. 1091, 1101 (1992).⁴ With that background in mind, we turn our attention to § 45a-441.

II OUR ANTILAPSE STATUTE

Connecticut's antilapse statute was enacted in 1821 as part of "An Act for the settlement of Estates, testate, intestate, and insolvent." It provided: "Whenever a devisee or legatee in any last will and testament, being a child or grand-child of the testator, shall die before the testator, and no provision shall be made for such contingency, the issue, if any there be, of such devisee or legatee, shall take the estate devised or bequeathed, as the devisee or legatee would have done, had he or she survived the testator; and if there be no such issue, at the time of the testator's death, the estate disposed of by such devise or legacy, shall be considered and treated as intestate estate." General Statutes (1821 Rev.) tit. 32, ch. 1, § 4. The antilapse statute today provides that "[w]hen a devisee or legatee, being a child, stepchild, grandchild, brother or sister of the testator, dies before him, and no provision has been made in the will for such contingency, the issue of such devisee or legatee shall take the estate so devised or bequeathed." General Statutes...