Buzzard v. Fass

315 A.3d 1119

225 Conn.App. 280

Joan BUZZARD

v.Laura FASS et al.

(AC 46257)

Appellate Court of Connecticut.

Argued January 9, 2024

Officially Released May 7, 2024

John F, Carberry, Stamford, with whom, on the brief, were Kelley Galica Peck, West Hartford, and M. Juliet Bonazzoli, Stamford, for the appellant (plaintiff).

Steven L. Katz, with whom was Alan J. Rome, Hartford, for the appellee (named defendant),

Patrick M. Fahey, Hartford, for the appellee (defendant Pamela Baker Weiss).

Elgo, Clark and Lavine, Js.

CLARK, J.

₂₈₃The dispositive issue in this appeal is whether the defendants, Laura Fass and Pamela Baker Weiss, the adopted great grandnieces of Joseph Merrow, the testator, are included within the terms "issue" and "descendants" used in a testamentary trust executed by the testator in 1946. The plaintiff, Joan Buzzard, claims that the only persons permitted to receive distributions under the subject trust are the originally named beneficiaries and their lineal blood descendants, not the adopted defendants. The plaintiff claims that the Superior Court improperly granted the defendants’ motions for summary judgment and denied her motion for summary judgment because it erroneously concluded that General Statutes § 45a-731 (4),¹ which provides that the terms "issue" and "descendants" when ₂₈₄used in a will or trust shall include legally adopted persons, applied to the trust at issue in this case. She claims that the definitions set forth in § 45a-731 (4) do not apply to the subject trust because the exceptions to their application that are set forth in § 45a-731 (11) (A) and (B)² apply in this case. For the reasons that follow, we disagree with the plaintiff and affirm the judgment of the Superior Court.

We begin with the relevant undisputed facts and procedural history of the case. The testator died on or about March 27, 1947. He never had children and he had no living siblings at the time of his death. The testator executed a will on March 19, 1946, and later executed two codicils, one on July 1, 1946 (first codicil), and another on September 6, 1946 (second codicil). The will established three testamentary trusts for the benefit of the descendants of his siblings: the Article Fifth Trust, the Article Sixth Trust, and the Article Eighth Trust. The Article Eighth Trust (trust) is the subject of the present dispute.

The trust provides for a contingent, outright distribution of a portion of the interests in the trust proceeds to the testator’s nephew, John Merrow Washburn, but it otherwise designated the testator’s sister, Mary W. Merrow, who had no children, and the living issue of the testator’s other two siblings, George W. Merrow and Martha Belden Washburn, as original beneficiaries.³ ₂₈₅Relevant for present purposes, the testator’s brother, George W. Merrow, had nine children, four of whom, John Merrow, Oliver Wolcott Merrow, Pauline M. Baker, and Harriet M. Landon, also had children. John Merrow had three biological children, all of whom had biological children, and Oliver Wolcott Merrow had three children, all of whom had biological children. Pauline M. Baker had three biological children. One of Pauline M. Baker’s children, William Baker, adopted Weiss, who was born in April, 1946, and was placed for adoption with William Baker and his wife in or around February, 1947. Weiss’ adoption was approved by the Hartford Probate Court on March 19, 1948. Harriet M. Landon had one biological daughter, Elizabeth M. Landon, who had no biological children. Elizabeth M. Landon adopted Fass in 2008, when Elizabeth M. Landon was eighty-five years old and Fass was fifty-three years old.

The trust provides in relevant part: "If any of the original beneficiaries or their successors in interest as herein determined shall die either before or after my death leaving issue, the interest of the one so dying shall thereafter be held upon the same terms for the benefit of such issue, per stirpes. If any of the original beneficiaries or their successors in interest as herein determined shall die either before or after my death leaving no issue, the interest of the one so dying shall thereafter be held upon the same terms for the benefit of [the] other beneficiaries then living and/or their issue or successors … in the same proportions in which they would inherit from the one so dying without issue if he or she were unmarried under the laws covering the distribution of intestate estates then in force in the State of Connecticut; it being my intention that the beneficial interests from the institution of this trust until its termination shall devolve through the line of ₂₈₆descent or inheritance without including husbands or wives of any of the beneficiaries so that at the termination hereof the distributees shall all be descendants of one or more of the original named beneficiaries …." (Emphasis in original.)

Upon the death of William Baker in 1997, Weiss succeeded to his interest. She began receiving distributions under the trust whenever the trustee made distributions. Specifically, as her father’s only child, Weiss received the entirety of what previously had been her father’s share of each distribution from the trust.⁴

After the death of Elizabeth M. Landon in 2014, the distributions that were payable to her under the trust were paid to Fass. An accounting listing Fass as a beneficiary of the trust was approved by the Probate Court in 2015. Fass received distributions from the trust from 2014 to 2019.

On or about December 5, 2019, the plaintiff filed an objection in the Probate Court to the approval of a periodic accounting of the trust. On January 6, 2020, a hearing was held by the Probate Court on the approval of the periodic accounting and the objection filed by the plaintiff. At the hearing, the plaintiff’s counsel argued that the trust document did not allow for distributions of the trust proceeds to Fass because she was adopted by Elizabeth M. Landon in 2008, when Fass was an adult. Notwithstanding § 45a-731, which generally provides that an adopted person shall have the same rights of inheritance as a biological child, the plaintiff’s counsel argued that the trust document did not allow ₂₈₇for a descendant not related to the testator by blood to receive distributions from the trust. Counsel for Fass and for the other beneficiaries under the trust, including Weiss, opposed the plaintiff’s objection during the hearing. The hearing on the periodic accounting was adjourned and the court ordered the parties to submit briefs on the plaintiff’s objection.

On June 9, 2020, the Probate Court rejected the plaintiff’s argument that the narrow exceptions to § 45a-731 (4) that are set forth in § 45a-731 (11) were applicable. Accordingly, the Probate Court approved the periodic accounting presented to it, thereby allowing Fass and Weiss to continue receiving distributions under the trust.

On July 9, 2020, pursuant to General Statutes § 45a-186,⁵ the plaintiff appealed to the Superior Court. In her complaint, the plaintiff alleged that the Probate Court erroneously concluded that there was insufficient evidence of the testator’s intent to exclude adopted persons. She also argued that a 1949 Probate Court decree (1949 decree) "definitively established that the beneficiaries entitled to distribution under the will were those individuals expressly named in the will and their descendants of the blood and not by adoption, whether then living or thereafter born, prior to the final termination of the continuing trust under the will."

On February 28 and March 18, 2022, Fass and Weiss, respectively, filed motions for summary judgment. They claimed that § 45a-731 (4), which provides that the terms "issue" and "descendants," when used in a will or trust, are to include legally adopted persons, applied to the testator’s will that created the subject trust. They claimed that the exceptions to § 45a-731 (4) set forth ₂₈₈in § 45a-731 (11) did not apply. Specifically, they argued that the plaintiff failed to establish by clear and convincing evidence that the testator had intended to exclude adopted persons from taking under the trust or that the trust had been distributed prior to October 1, 1991.

On April 6, 2022, the plaintiff filed a motion for summary judgment. She argued that subdivisions (1) through (9) of § 45a-731 were inapplicable because the exceptions to their application, set forth in § 45a-731 (11), applied. In particular, she claimed that the exception set forth in § 45a-731 (11) (B) was satisfied because the testator died before October 1, 1959, and the 1949 decree was a "court order entered prior to October 1, 1991," that distributed the estate. The plaintiff further claimed that the exception set forth in § 45a-731 (11) (A) also was satisfied because the testator’s intent to exclude adopted persons was clear and unequivocal. As a result, the plaintiff argued that § 45a-731 (4) was inapplicable to the distributions at issue and that the court was required to give the words in the testator’s will their ordinary meaning at the time the will was written and when the testator died. The plaintiff argued that the law at the time the will was written and when the testator died required the court to construe the will to exclude adopted persons as potential beneficiaries because the testator used the terms "issue" and "descendants" without any expression of an intent to include adopted persons. The plaintiff claimed that those terms, as they were ordinarily understood in 1946 and 1947, meant only " ‘lineal blood relationships’ …." (Citation omitted.)

On January 24, 2023, the court, Sicilian, J., issued a memorandum of decision granting the motions for summary judgment filed by Fass and Weiss, and denying the motion for summary judgment filed by the plaintiff. The court concluded that the exceptions set forth in § 45a-731 (11) did not apply to the undisputed facts of ₂₈₉this case and, therefore, Fass and Weiss were entitled to...