Shulman v. Connecticut Bank & Trust Co.
Shulman v. Connecticut Bank & Trust Co.
Opinion of the Court
The plaintiff appealed to the Superior Court from a decision of the Probate Court for the district of Hartford ordering the distribution of the decedent’s residuary estate to The Joseph L. Shulman Foundation, a charitable trust. After a trial de novo, the Superior Court affirmed the order of distribution. The plaintiff, the decedent’s estranged brother, has appealed from that judgment to this court.
The facts leading to this litigation are not in dispute. The decedent, Joseph L. Shulman, was an attorney residing in Hartford and a substantial holder of real estate and other interests in the local area. On December 13, 1965, he executed his last will and testament. After making numerous specific bequests, he left the residue of his estate, under clause fourteen, to the Beat-man Foundation, Inc., a nonprofit Connecticut corporation, located in South Norwalk. Approximately one year later, on December 30,1966, the decedent created The Joseph L. Shulman Foundation as an irrevocable charitable trust, declaring himself to be the trustee. This foundation subsequently qualified as a tax exempt organization under Internal Revenue Code § 503 (c) (3).
Paragraph seven of the Shulman Foundation trust declaration reads as follows: “The trustee is authorized if he desires to do so to organize a corporation under the laws of the State of Connecticut, or any other state of the United States. The corporation so organized shall be a charitable organization and shall be organized and operated for the same general purposes as this trust. The name of such corporation shall include the settlor’s name. Upon the organization of such corporation, the trustee may transfer a portion or all of the trust fund to such corporation.” The failure of the trustee to organize such a corporation for the foundation is at the heart of the present litigation.
Four years after the execution of the codicil, on June 24, 1976, the testator died. The decedent’s will and codicil were admitted to probate in the Probate Court for the district of Hartford. After a hearing on the settlement and allowance of the administration account, the court, on August 25, 1982, made, inter alia, the following findings, order and decree: “that the decedent intended to make a charitable distribution of the rest, residue and remainder of his estate; that The Joseph L. Shulman Foundation is a charitable organization; that the intent of the decedent, as expressed
The plaintiff, who was expressly disinherited by the will, appealed from this order and decree. After a trial, the court upheld the Probate Court decision. The plaintiff has now appealed further to this court.
The principal claims of the plaintiff are that the court erred (1) in reforming the will to designate a new beneficiary to take a void bequest, and (2) in admitting the scrivener’s testimony to establish a draftsman’s error in the codicil. It is the plaintiff’s contention that the residuary estate should pass by intestacy for lack of an existing legatee or distributee. Since there was no qualifying corporate entity known as The Joseph L. Shulman Foundation, Inc., in existence upon the testator’s death, he contends that the legacy lapsed. The naming of the unincorporated trust of similar name as distributee by the probate and trial courts, therefore, was an illegal reformation of the decedent’s will. In substance, the plaintiff maintains that the issue concerns not a misdescription of a legatee, but a nondescription, the description of a nonentity, leaving the residue of the estate for distribution by intestacy. The defendant contends, to the contrary, that the court properly found an unintentional misdescription only and did not reform the testator’s will and codicil.
There is a well established presumption against the intent of a testator to leave any part of his estate intestate and courts will endeavor to avoid a construction of a will resulting in partial intestacy. Wallace v. Wallace, 103 Conn. 122, 134, 130 A. 116 (1925). The designation by the testator in this case of charitable organizations as contingent residuary beneficiaries of his estate after designating a charitable organization as the primary residuary beneficiary is expressive of his intent to dispose of the entire estate without intestacy. By primary or contingent designation, the residue was to go to charity. He appeared to close all doors of his estate to intestacy, even to the extent of specifically excluding, in paragraph thirteen of the will, the plaintiff and other heirs not otherwise named as legatees.
Our reports record that other legacies to misnamed or misdescribed beneficiaries have been allowed by the courts. In those cases, as here, extrinsic evidence was permitted for the identification of the proper legatees. The rule concerning the use of extrinsic evidence is that it is admissible to identify the devisee or legatee named or the property described in a will, or to make clear the doubtful meaning of language used in a will. On the other hand, it is never admissible for the purpose of showing an intention not expressed in the will itself, or for the purpose of proving a devise or bequest not contained in the will. Connecticut Junior Republic v. Sharon Hospital, 188 Conn. 1, 9, 448 A.2d 190 (1982).
Brinsmade v. Beach, 98 Conn. 322, 119 A. 233 (1922), was a suit to determine the construction of a will reserved to the Supreme Court for its advice upon the facts alleged in the complaint. By clause three, the
The trial court relied upon Eccles v. Rhode Island Hospital Trust Co., 90 Conn. 592, 98 A. 129 (1916), in affirming the order of the Probate Court. Eccles was also a reservation for the advice of the Supreme Court upon an agreed statement of facts. In that case the testator made charitable bequests to “the Rock Nook Home for Children, a corporation located in said City of Norwich.” There was not and never had been any corporation by the name of Rock Nook Home for Children, or by any name of like sound or meaning, in the state. There was, however, a home for destitute children in Norwich commonly known to the public by the name of “Rock Nook Children’s Home,” owned by the United Workers of Norwich, a corporation. The decedent had been interested in the work of the home and sought places there for children in his district. The Probate Court appointed the United Workers as trustee
Another reservation for construction of a will involving the misdescription of a legatee was Weed v. Scofield, 73 Conn. 670, 49 A. 22 (1901). In the will involved there, a bequest was made to the “Institution for the Relief of the Ruptured and Crippled in the City of New York.” There was no institution or corporation in New York known by that name. There existed, however, a corporation named “The New York Society for the Relief of the Ruptured and Crippled.” All parties agreed that this was the institution which the testator intended to designate. The court found, without discussion, that the latter was the legatee intended by the testator in the will describing the former.
Still an earlier reservation concerning the misdescription of a charitable remainderman was American Bible Society v. Wetmore, 17 Conn. 181 (1845). In that case, the trial court made the following findings of fact before seeking the advice of the Supreme Court: a residuary bequest was made to the Foreign Mission Society; The American Board of Commissioners for Foreign Missions was commonly known to the testatrix, and to the members of the church and congregation, by the name and description of the “Foreign Mission Society”; and by the words “Foreign Mission Society” the testatrix
A misdescription has been called a latent ambiguity that is explainable by parol evidence of the testator’s intention. Since the object is to discover the intention of the testator, the rule is well settled that any testimony is admissible for that purpose which is relevant under the general principles of evidence. Any fact or circumstance, which, from experience or observation, may fairly be presumed to have had an influence on his mind in inducing him to make the bequest or legacy, is admissible to prove his intention. Ayres v. Weed, 16 Conn. 291, 302 (1844). Ayres was an action of ejectment for land brought by the heirs at law against the defendants holding title under the Protestant Episcopal Society of New Canaan as devisee of the testator. The residue of the estate was willed to the Protestant Episcopal Church in New Canaan. The Protestant Episcopal Society was incorporated as a voluntary association. The terms “church” and “parish” were used indiscriminately with respect to this denomination and in the same sense as the term “society.” There was also another body of persons, not incorporated, composed of the communicants and all baptized persons in the society. This group constituted what was termed “the church” in the society. Parol evidence was introduced to show which of these bodies was intended by the devise. The jury decided that the intended devisee was the Protestant Episcopal Society and found for the defendants. The Supreme Court affirmed.
The earliest case in this line of precedents is Brewster v. McCall’s Devisees, 15 Conn. 274 (1842), where the
The trial court here properly allowed extrinsic evidence to establish the intent of the testator. From the scrivener’s testimony that The Joseph L. Shulman Foundation had been misdescribed in the codicil as a corporation, the court concluded that the testator intended the residuary estate to pass to the charitable organization and trust in existence and known as The Joseph L. Shulman Foundation. In this conclusion we agree. It may have been that the testator, in the rush of the circumstances under which the codicil was prepared, had forgotten the organizational details of his foundation. “If so, his lapse of memory could only be important if the inquiry were one as to his testamentary capacity. So far as concerns the construction of a will, the question always is, not what the testator meant to say, but what is meant by what he did say.” Weed v. Scofield, supra, 677; Smuda v. Smuda, 153
The plaintiff’s reliance upon Connecticut Junior Republic v. Sharon Hospital, 188 Conn. 1, 448 A.2d 190 (1982), and Smuda v. Smuda, supra, in support of his position that the court erred in permitting the scrivener of the codicil to testify as to the testator’s intent is misplaced. Connecticut Junior Republic was an appeal from an order and decree of the Probate Court “admitting to probate a will and codicils thereto.” Smuda was an appeal from a decree of the Probate Court “denying the plaintiff’s motion to reform the decedent’s will.” In neither case was the question before the court the correction by extrinsic evidence of a misdescription of an intended legatee or remainderman under a will.
In view of our holding, it is unnecessary to review the other issues raised in this appeal.
There is no error.
In this opinion the other judges concurred.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.