Zauner v. Brewer
Zauner v. Brewer
Opinion of the Court
In this will construction case, the plaintiff, Anne Barnett Zauner, challenges the judgment of the Superior Court in favor of the defendant, Leonie Sullivan (Walker) Brewer,
The plaintiff was the wife and is the sole devisee of the testatrix’ now deceased only son, John S. Barnett. The defendant was the wife of the testatrix’ physician and friend, Eddie Brewer. The focus of the present dispute is a will executed by the testatrix in July, 1967,
Upon the testatrix’ death in October, 1967, the defendant, in accordance with article three of the testatrix’ will, entered into possession of the property and made her home there. The defendant resided on the property until September, 1988, when she purchased and began to occupy a home elsewhere and leased the property to a third party. To date, a third party remains in possession of the property pursuant to a lease executed by the defendant.
After learning of the defendant’s leasing of the property, the plaintiff commenced this action in the Superior Court alleging that, under article three of the testatrix’ will, such leasing constituted a “surrender” of “the premises” that entitled the plaintiff to immediate possession of and title to the property in fee simple. The plaintiff further alleged that by permitting the buildings and grounds of the property to become out of repair, the defendant had committed “waste” within the meaning of § 52-563 that had greatly diminished the value of the property. In addition to possession and title, the plaintiff sought relief in the form of money damages and “such other and appropriate equitable relief as the court may deem appropriate.”
On appeal, the plaintiff argues that the trial court improperly determined that no genuine issue of material fact existed as to whether: (1) the defendant’s leasing of the property constituted a “surrender” of “the premises” within the intended meaning of that phrase in the testatrix’ will; and (2) the defendant committed waste actionable by the plaintiff and subject to immediate relief in damages under § 52-563. We agree.
The plaintiff first claims that the trial court improperly determined that no genuine issue of material fact existed as to whether the defendant’s leasing of the property constituted a “surrender” of “the premises” within the intended meaning of article three of the testatrix’ will. According to the plaintiff, the phrase “surrenders the premises” was an ambiguous expression of testamentary intent that required the trial court to consider extrinsic evidence in order to determine whether the testatrix intended that a leasing of the property constitute a surrender of the premises. The defendant counters that the testatrix’ use of the word “surrender” in the will unambiguously evinced her intent that a surrender of the premises mean a “surrender” as defined in the law of estates: “A yielding up of an estate for life or years to him who has an immediate estate in reversion or remainder . . . .” Black’s Law Dictionary (5th Ed.). Consequently, the defendant maintains that, as a matter of law, she did not surrender the premises when she leased the property to a third party. We agree with the plaintiff.
“ ‘Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Practice Book § 384 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” ’ ” Gurliacci v. Mayer, 218 Conn. 531, 561-62, 590 A.2d 914 (1991). The issue, therefore, is whether the trial court properly determined that the testatrix’ will so unambiguously expressed her intent that the phrase “surrenders the premises” carry the technical meaning accorded the term “surrender” in the law of estates that, as a matter of law, the defend
In construing a will, the “meaning of language used cannot be determined by an arbitrary rule of legal definition, but depends in each case on the peculiar provisions and character of the special will in question, which must to a large extent be its own interpreter.” Wolfe v. Hatheway, 81 Conn. 181, 185, 70 A. 645 (1908). The proper contextual examination of a word carrying a technical legal meaning, for example, may indicate that the testatrix used the word in a nontechnical or otherwise more restricted sense. Id.; see Stanton v. Stanton, 140 Conn. 504, 515, 101 A.2d 789 (1953); see also Canaan National Bank v. Peters, 217 Conn. 330, 336, 586 A.2d 562 (1991). In such instances, the expressed intent of the testatrix must be effectuated by construing the particular word accordingly. Stanton v. Stanton, supra. Moreover, testamentary language “susceptible of different meanings is to be given that meaning which will most nearly effectuate the [testatrix’] intention.” Middletown Trust Co. v. Gaffey, 96 Conn. 61, 67, 112 A. 689 (1921). “This requires the court, at times, to resort to extrinsic facts as an aid in explaining any language whose meaning the [testatrix] has left uncertain.” Ministers Benefit Board v. Meriden Trust Co., 139 Conn. 435, 444, 94 A.2d 917 (1953); see Cornell v. Cornell, 165 Conn. 376, 382, 334 A.2d 888 (1973).
An examination of the word “surrender” in its context in article three of the testatrix’ will discloses that she employed the word as a transitive verb, followed by the object “the premises.” Although the “usual and appropriate meaning” of the word premises in the law of estates denotes an interest or estate, the word “is used in common parlance to signify land, with its appurtenances” and the “buildings thereon.” Black’s Law Dictionary (5th Ed.); see Webster’s Ninth New Collegiate Dictionary. The susceptibility of the word prem
In view of these ambiguities, we conclude that the intended meaning of the entire phrase “surrenders the premises” in article three of the testatrix’ will is not discernible from the language of the will alone.
The plaintiff next argues that the trial court improperly determined that no genuine issue of material fact existed as to whether the defendant committed waste actionable by the plaintiff and subject to immediate relief in damages under § 52-563.
A
Section 52-563 provides: “Any person who, having no greater interest in real property than an estate for years, or for life, created by the act of the parties and not by the act of the law, commits waste upon the premises, beyond what tenants for years or life created by operation of law may do, shall be liable to the party injured in an action on this section, unless he was expressly authorized, by the contract under which the interest is created, to do the acts complained of.” With respect to the defendant’s contention that the plaintiff’s claim of waste was not actionable under § 52-563 in the absence of substantial or permanent injury to the property, the plaintiff directs our attention to the following evidence that she submitted in opposition to the defendant’s motion for summary judgment: building inspector William Conrad’s affidavit asserting that
The defendant concedes that the plaintiff’s evidence disclosed that “some ordinary repairs were needed to preserve the property and keep it in a reasonable state of repair.” In addition, the defendant acknowledges that she was “responsible” for making such repairs. See Hooker v. Goodwin, 91 Conn. 463, 471, 99 A. 1059 (1917). The defendant nonetheless contends that the evidence was insufficient to preclude summary judgment because it did not show that her failure to make ordinary repairs had resulted in permanent and substantial injury to the property. Although the defendant does not attempt to ground this contention upon the language of § 52-563, an endorsement of her position would require that we construe the word injured in the statute to require permanent and substantial injury, in the absence of which, as the defendant asserts, a claim of waste does not “rise to the level of an actionable claim” under the statute. Because such a construction of § 52-563 to a large extent would absolve the defendant of her acknowledged duty to make ordinary repairs, we reject it.
A life tenant is bound to keep the land and the structures comprising the estate “ ‘in as good repair as they were when he took them, not excepting ordinary or nat
Construing the plaintiffs evidence in the light most favorable to her; Connell v. Colwell, 214 Conn. 242, 247, 571 A.2d 116 (1990); we conclude that the plaintiff established a sufficient factual predicate from which it could be determined, as a matter of law, that a genuine and material factual dispute existed as to whether the defendant had committed permissive waste by neglecting to perform preservative acts comprehended within both aspects of her duty to make ordinary repairs. See id., 251. The declarations in the affidavit by Conrad indicated that the defendant had not made preventive ordinary repairs in that the front posts supporting the boat dock were “splitting and must be replaced,” the mortar on a retaining wall had “cracked” and the wall had “moved,” and “the wall coverings throughout the house [had] begun to come off the walls.” With respect to the defendant’s failure
The defendant similarly acknowledged in her deposition testimony that she had ceased efforts to control the vegetation that had begun growing in the swimming area when it “got the better of [her],” and that while the island in the center of the pond had experienced “tremendous growth” during her tenancy, she had taken no action to control that growth since 1983. Notwithstanding the affidavit submitted by the defendant wherein real estate broker and appraiser Robinson Leach, Jr., contrarily alleged that his inspection of the property revealed “nothing other than ‘normal wear and tear/ ” this evidence can hardly be characterized as excluding “any real doubt as to the existence of any genuine issue of material fact” concerning the defendant’s commission of permissive waste. Batick v. Seymour, 186 Conn. 632, 637, 443 A.2d 471 (1982). The court, therefore, should not have rendered summary judgment for the defendant on the plaintiff’s claim that the defendant had committed permissive waste under § 52-563.
B
With respect to the defendant’s alternative contention that § 52-563 authorizes only equitable relief and not relief in money damages for waste before the termination of her life tenancy, we initially note that even if we were to agree with her, we nevertheless would conclude that summary judgment on the plaintiff’s claim of waste was improper. The plaintiff’s prayer for relief not only included a request for money damages, but also a request for “such other and appropriate equi
In support of her claim that a life tenant is not “liable” under § 52-563 to pay damages for waste before the termination of the tenancy, the defendant principally relies upon an American Law Reports annotation reporting a number of cases from other jurisdictions so limiting a contingent remainderman’s right to collect damages for waste. See annot., 56 A.L.R.3d 677, 681. The jurisdictions noted in the annotation relieve a life tenant from legal liability to a contingent remainderman on various grounds, each tied to the uncertainty that the future interest ever will become possessory.
The comparative certainty of possession attendant to ownership of an indefeasibly vested future interest in fee simple absolute, the type of interest owned by the plaintiff,
While we have not previously considered whether a life tenant likewise is “liable” under § 52-563 to pay damages for any injury to the inheritance caused by permissive waste, we see no principled reason why the immediacy of an indefeasibly vested future interest owner’s remedy in damages should turn upon the variety of waste committed by the tenant. The variety of
Having discerned no sound basis for distinguishing between the remedies immediately available to the owner of an indefeasibly vested future interest in fee simple abolute insofar as voluntary and permissive waste are concerned, we conclude that the available remedies should be coextensive. A life tenant, therefore, may be “liable” under § 52-563 to pay damages to such an owner for either voluntary or permissive waste before the termination of the tenancy. See
The judgment is reversed and the case is remanded for further proceedings according to law.
In this opinion the other justices concurred.
William Powell was also named as a defendant, but the action against him was later withdrawn. We will refer to Leonie Sullivan Brewer as the defendant throughout this opinion.
“[General Statutes] Sec. 52-563. liability for waste by tenant for life or years. Any person who, having no greater interest in real property than an estate for years, or for life, created by the act of the parties and not by the act of the law, commits waste upon the premises, beyond what tenants for years or life created by operation of law may do, shall be liable to the party injured in an action on this section, unless he was expressly authorized, by the contract under which the interest is created, to do the acts complained of.”
While the court confined its ruling on the defendant’s motion for summary judgment to the plaintiff’s claim that the leasing of the property constituted a “surrender” of “the premises” under article three of the testatrix’ will, we treat the court’s subsequent order denying the plaintiffs timely motion to open the judgment for the purpose of reinstating her claim of waste as an implicit rendering of summary judgment in the defendant’s favor on the latter claim.
The defendant asserts that even if we were to find ambiguity in the phrase “surrenders the premises,” that ambiguity must be resolved in her favor because an established tenet of will construction “forbids the cutting down of an express and positive devise in fee, or bequest absolute in terms, in one clause, to an inferior or lesser estate by another clause, unless the second clause expressing the lesser estate indicates a clear intention that the greater estate shall be cut down to the lesser estate.” Hull v. Hull, 101 Conn. 481, 486, 126 A.2d 699 (1924). Because the defendant herself claims that the testatrix devised a life estate to her, rather than a “fee, or bequest absolute in terms,” the above principle is inapposite to this case.
The record indicates that the plaintiff offered such evidence on the defendant’s motion for summary judgment, namely, that the attorney who drafted the will advised the defendant, upon the testatrix’ death, that it was necessary to occupy the property in order to take advantage of the life estate devised to her.
See footnote 2, supra.
The drafters of the Restatement illustrate the dual aspects of a tenant’s duty “to preserve the land and structures in a reasonable state of repair” as follows: “A, owning Blackacre in fee simple absolute, transfers Blackacre ‘to B for life.’ At the time of the transfer, a house is located on Blackacre. I. B permits the exterior wood of this house to go without repainting until the boards are exposed to weather. The repainting of this exterior woodwork is necessary to prevent a progressive weathering of the structure. Such repainting is within the duty ‘to preserve the land and structures in a reasonable state of repair.’ II. B permits the interior woodwork to go without repainting and the walls to go without repapering for a period of fifteen years. These omissions amount to substantial deterioration of the structure. Repainting and repapering the interior of such house is within the duty ‘to preserve the land and structures in a reasonable state of repair.’ ” 1 Restatement, Property § 139, comment (c), illustration 3.
The defendant argues that Ferguson v. Rockford, 84 Conn. 202, 79 A. 177 (1911), is inapposite to the present case since that case involved a tenant in dower, and because the decision in Ferguson accordingly rested on the statute then setting forth certain of a dower tenant’s obligations regarding permissive waste, including the duty to “maintain and keep in repair the buildings, fences, and lands set out to her for her dower, and in case she, or her assigns, shall neglect so to do, the persons entitled to the land
Because the plaintiff owns an indefeasibly vested future interest in the property in fee simple absolute; see footnote 10, infra; the defendant owes her a duty to make ordinary repairs. See 2 Restatement, Property § 187 (a) (owner of indefeasibly vested future interest in fee simple absolute possesses “a right correlative to each of the duties of the owner of an estate for life,” including the “duty not to permit deterioration of land or structures”); see also L. Simes & A. Smith, Law of Future Interests § 1654 (“the right of the owner of the future interest to recover from the life tenant for waste is the converse of the duty of the life tenant to refrain from waste. While a life tenant may be under a duty to refrain from waste when a contingent remainderman may have no right of action against him, the owner of an indefeasibly vested reversion or remainder would always have a right where the sole life tenant is under a duty; there being no other owner of a future interest in whom the right could be vested”).
As the drafters of the annotation note, however, many jurisdictions afford contingent remaindermen a legal remedy that reflects the tenuous nature of their interests. The Oregon Supreme Court, for example, has adopted a rule that “if the contingency is fairly certain, and, therefore, the likelihood of damage to the remainderman is high,” the contingent remainderman is “entitled to a determination of the amount of damages and to an impounding of the proceeds . . . .” Pedro v. January, 261 Or. 582, 596-98, 494 P.2d 868 (1972), following Watson v. Wolff-Goldman Realty Co., 95 Ark. 18, 24-25, 128 S.W. 581 (1910).
The plaintiff’s interest in the property is an indefeasibly vested future interest in fee simple absolute because, pursuant to the terms of the testatrix’ will, “[i]t is an interest certain to become present at a time not more distant than the end of a single present estate for life.” 2 Restatement, Property § 187, comment (a).
Reference
- Full Case Name
- Anne Barnett Zauner v. Leonie Sullivan Brewer
- Cited By
- 34 cases
- Status
- Published