Benjamin v. Corasaniti ( 2022 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
HELEN Z. BENJAMIN ET AL. v. RALPH P.
CORASANITI, TRUSTEE, ET AL.
(SC 20491)
Robinson, C. J., and McDonald, D’Auria, Kahn,
Ecker and Keller, Js.
Syllabus
The plaintiffs, H and the cotrustees of certain trusts of which H was a
beneficiary, appealed to the trial court from the decision of the Probate
Court, which concluded that H’s brother, P, had validly exercised his
testamentary powers of appointment under certain trusts established
for his benefit by directing in his will that the proceeds of the sale of
stock in a family corporation, H Co., be distributed to a charitable trust
that P had established. P and his five siblings, including H, were each
a beneficiary of two trusts established by their father in 2002 and 2005,
which were governed by Illinois and Connecticut law, respectively. In
2011, P and his siblings, except H, transferred their shares in H Co. to
separate trusts, which also were governed by Illinois law. Pursuant to
P’s 2002, 2005 and 2011 trust instruments, P was granted a nongeneral
testamentary power of appointment over the H Co. shares held in trust
for his use and benefit. P could exercise his power of appointment only
by specific reference in his will, but not in favor of himself, his creditors,
his estate, or the creditors of his estate. Furthermore, if P failed to
validly exercise his power of appointment, his trust property would be
distributed equally to the trusts of his surviving siblings. In addition,
the H Co. shareholder’s agreement provided that, if a sibling exercises
his or her power of appointment with respect to the H Co. shares held
in his or her trusts, those shares shall be sold, within nine months of
the sibling’s death, in equal amount to the surviving siblings’ trusts.
After an accident rendered P a quadriplegic, P established the charitable
trust in 2016, the purpose of which was to provide financial assistance
to quadriplegics and their caregivers and to fund quadriplegia related
research and initiatives. P thereafter executed a will in which he stated
that he was exercising his testamentary powers of appointment over
the H Co. shares held in his 2002, 2005 and 2011 trusts and directed
that the proceeds from the sale of the H Co. shares be distributed to
the 2016 charitable trust. P died in 2017, survived by his five siblings,
and his will was admitted to probate. The Probate Court concluded that
P’s exercise of his powers of appointment was valid and ordered the
trustees of the siblings’ respective trusts to fund the 2016 charitable
trust with the net proceeds of the sale of the H Co. stock. On appeal
to the trial court, the plaintiffs claimed that P’s exercise of his powers
of appointment was invalid under both Connecticut and Illinois law
because the 2016 charitable trust was not funded prior to P’s death.
The trial court, however, upheld the decision of the Probate Court and
rendered judgment in favor of the defendants, which included P’s siblings
other than H, their descendants, the trustees of their family trusts, and
the trustees of P’s trusts. On the plaintiffs’ appeal, held that the trial
court correctly concluded that P effectively and validly exercised his
nongeneral testamentary powers of appointment to direct the proceeds
of the sale of the H Co. stock held in his 2002, 2005 and 2011 trusts to
the 2016 charitable trust, even though the 2016 trust was unfunded at
the time of P’s death: under both Connecticut and Illinois law, the
exercise of a nongeneral power of appointment is valid and effective if
the donee expresses an intent to exercise the power of appointment
and the donee complies with any conditions imposed on the exercise
of the power of appointment by the donor; in the present case, it was
undisputed that P expressed in his will a clear and unequivocal intent to
exercise his powers of appointment, and P complied with the conditions
imposed on the exercise of those powers by the 2002, 2005, and 2011
trusts, as the 2016 charitable trust was an organization other than P,
P’s creditors, P’s estate, or the creditors of P’s estate, and P exercised
his powers by specific reference in a valid will that was admitted to
probate; moreover, although the 2016 charitable trust was unfunded
prior to P’s death and, therefore, was not a valid and enforceable charita-
ble trust during P’s lifetime, a trust need not be funded contemporane-
ously with the execution of the trust documents, and the 2016 charitable
trust became valid and enforceable when it was funded, after P’s death,
through the exercise of P’s powers of appointment in his will; further-
more, contrary to the plaintiffs’ claim, the fact that P appointed the
proceeds of the sale of the H Co. stock to a trust, rather than a trustee,
did not render the exercise of his powers of appointment invalid and
ineffective, as a trustee may be temporarily absent without destroying
the trust or preventing its creation, especially in light of the axiom that
a charitable trust must be construed liberally in order to carry out the
charitable purposes of the individual who created the trust.
Argued April 1—officially released December 6, 2021*
Procedural History
Appeal from the decision of the Probate Court for
the district of Darien-New Canaan confirming that the
decedent had validly exercised his testamentary power
of appointment when he appointed certain property
held in trust to an unfunded charitable trust, brought
to the Superior Court in the judicial district of Stamford-
Norwalk and transferred to the judicial district of Water-
bury, where Scott A. Weisman et al. were substituted
for the named plaintiff only in her former capacity as
trustee and added as plaintiffs; thereafter, the case was
tried to the court, Bellis, J.; judgment affirming the
decision of the Probate Court, from which the plaintiffs
appealed. Affirmed.
Steven M. Frederick, with whom were David G.
Keyko, pro hac vice, and, on the brief, Christopher
Fennell, pro hac vice, and Gessi Giarratana, for the
appellants (plaintiffs).
Helen Harris, with whom, on the brief, were John
W. Cerreta, Thomas D. Goldberg and Michael Schoene-
berger, for the appellees (named defendant et al.).
Charles W. Pieterse, with whom were Wyatt R. Jan-
sen and Lynn K. Neuner, for the appellees (defendant
William T. Ziegler et al.).
Frederic S. Ury, with whom, on the brief, was Debo-
rah M. Garskof, for the appellees (defendant Karl H.
Ziegler et al.).
Gary W. Hawes, assistant attorney general, with
whom, on the brief, were William Tong, attorney gen-
eral, Clare E. Kindall, solicitor general, and Karen
Gano, assistant attorney general, for the appellee
(defendant attorney general).
ECKER, J. In July, 2015, Peter M. Ziegler (Peter), a
scion of a wealthy Connecticut family, suffered a tragic
accident that rendered him a quadriplegic. Approxi-
mately one year later, Peter executed a trust instrument
to create a charitable trust, Peter’s Yellow Submarine
Trust, for the purpose of providing financial assistance
to other quadriplegics and their caregivers. The trust
was not funded during Peter’s lifetime, but Peter, who
had nongeneral testamentary powers of appointment
under various Ziegler family trusts, exercised his pow-
ers of appointment in his will to direct the proceeds of
the sale of stock in a Ziegler family corporation, Hay
Island Holding Corporation (HIHC), to Peter’s Yellow
Submarine Trust. Peter’s sister, Helen Z. Benjamin
(Helen), subsequently challenged the validity of Peter’s
exercise of his nongeneral testamentary powers of
appointment, alleging that a trust that remains
unfunded during a testator’s lifetime does not exist
as a matter of law and, therefore, is an impermissible
appointee. The Probate Court disagreed, and the trial
court affirmed, concluding that Peter’s Yellow Subma-
rine Trust was a permissible appointee even though it
was not funded prior to Peter’s death. On appeal, we
must determine whether an unfunded charitable trust is
a permissible appointee of the exercise of a nongeneral
testamentary power of appointment. We answer that
question in the affirmative and, accordingly, affirm the
judgment of the trial court.
The record reflects the following stipulated or other-
wise undisputed facts. In 2002, Peter’s father, William
Ziegler III, created The William Ziegler III Family Irrevo-
cable Trust (2002 Trust), which established separate
trusts for the benefit of Peter and each of his five sib-
lings: Melissa J. Ziegler, William T. Ziegler, Karl H.
Ziegler, Cynthia Z. Brighton, and Helen. The 2002 Trust
holds shares of HIHC, which is wholly owned by the
Ziegler family and their trusts. Pursuant to § 3.4 of the
2002 Trust, Peter was granted a nongeneral testamen-
tary power of appointment over the HIHC shares held
in trust for his use and benefit. Section 3.4 (A) of the
2002 Trust provides in relevant part that, upon Peter’s
death, his 2002 Trust ‘‘shall terminate’’ and that, ‘‘by
specific reference in his . . . will, [Peter] may appoint
the remaining trust property in such amounts, either
outright or in further trust . . . to or for the benefit of
any one or more persons or charitable organizations
. . . provided, however, that such limited power of
appointment shall not be exercisable in favor of [Peter],
his . . . creditors, his . . . estate, or the creditors of
his . . . estate . . . .’’ (Emphasis in original.) If Peter
failed validly to exercise his nongeneral testamentary
power of appointment, his trust property would be dis-
tributed equally to his descendants or, alternatively, to
the 2002 Trusts of his surviving siblings. The 2002 Trust
is governed by Illinois law.
In 2005, William Ziegler III created a second trust,
The William Ziegler III Revocable Trust, which, among
other things, created a Trust C (2005 Trust C) holding
HIHC shares for the use and benefit of each of the six
Ziegler siblings. Under § 3.12 of the 2005 Trust C, Peter
was granted a nongeneral testamentary power of
appointment substantially similar to that contained in
the 2002 Trust, which could not be exercised in favor
of Peter, his creditors, his estate, or the creditors of
his estate.1 Also similar to the 2002 Trust, Peter’s failure
to validly exercise his nongeneral testamentary power
of appointment would result in the distribution of his
trust property equally to his descendants or, alterna-
tively, to the trusts of his surviving siblings. The 2005
Trust C is governed by Connecticut law.
In 2011, all of the Ziegler siblings, with the exception
of Helen, transferred their shares in HIHC to separate
trusts. Pursuant to Peter’s 2011 Irrevocable Trust (2011
Trust), which was established by his wife, Marie Long-
ner Ziegler, Peter was granted a nongeneral testamen-
tary power of appointment that, like the other two
trusts, could not be exercised in favor of Peter, his
creditors, his estate, or the creditors of his estate.2 Simi-
larly, if Peter died without validly exercising his nongen-
eral testamentary power of appointment, the trust
property would be distributed equally to his descen-
dants or, alternatively, to the 2002 Trusts of his surviving
siblings. The 2011 Trust, like the 2002 Trust, is governed
by Illinois law.
In December, 2012, the shareholders in HIHC, includ-
ing Peter, his siblings, and the trustees of their respec-
tive trusts, entered into an Amended and Restated
Shareholder’s Agreement of Hay Island Holding Corpo-
ration (shareholder’s agreement). The shareholder’s
agreement provides that, if a Ziegler sibling exercises
his or her nongeneral testamentary power of appoint-
ment with respect to the HIHC shares in the 2002 Trust,
the 2005 Trust C, or the 2011 Trust, ‘‘the shares as
to which the testamentary power of appointment was
exercised shall be sold in equal shares to the surviving
Ziegler [s]iblings’ [family] [t]rusts.’’ The sale must ‘‘take
place within nine . . . months of the date of death of
the deceased Ziegler [s]ibling,’’ and the shares shall be
valued ‘‘as of the date of death of the Ziegler [s]ibling
. . . .’’
As we previously mentioned, Peter suffered a tragic
accident in 2015 that rendered him a quadriplegic.
Approximately one year later, on August 5, 2016, Peter
signed a trust instrument establishing Peter’s Yellow
Submarine Trust and designating himself and two of
his siblings as trustees. The express purpose of Peter’s
Yellow Submarine Trust ‘‘is to make distributions,
loans, or grants exclusively for [c]haritable [p]urposes
. . . with special emphasis on distributions, loans, or
grants related to (1) providing housing assistance to
quadriplegics, (2) providing assistance with the devel-
opment and distribution of assistive devices and tools
for quadriplegics, (3) providing assistance and educa-
tion to caregivers of quadriplegics, and (4) providing
funding for research related to paralysis and returning
motor and nerve function to quadriplegics.’’ The Peter’s
Yellow Submarine Trust instrument provides that the
res of the trust is the ‘‘property listed in Schedule A
attached hereto,’’ but there is no evidence that a Sched-
ule A ever was attached or that the trust was funded
prior to Peter’s death.
In October, 2016, Peter executed a will, which refer-
ences his ‘‘testamentary powers of appointment over
the [HIHC] [s]hares held’’ in the 2002 Trust, the 2005
Trust C, and the 2011 Trust, and which states that ‘‘I
hereby exercise such powers and direct that all of the
[s]hares be sold in accordance with the [s]hareholder’s
[a]greement and the net proceeds of such sale shall be
distributed to . . . Peter’s Yellow Submarine Trust, to
be added to principal and applied for such organiza-
tion’s charitable purposes.’’ Approximately one year
later, Peter died without descendants, and his will was
admitted to probate. Peter is survived by all five
Ziegler siblings.
In May, 2018, Peter’s sister Helen received a copy
of the Peter’s Yellow Submarine Trust instrument and
learned that it was not funded prior to Peter’s death.
After voicing concerns about the validity of Peter’s exer-
cise of his nongeneral testamentary powers of appoint-
ment and the pending nine month deadline for the sale
of Peter’s shares of HIHC stock under the terms of the
shareholder’s agreement, Helen entered into a memo-
randum of understanding with the trustees of the
respective Ziegler family trusts, which provided that
they would ‘‘file a petition in Connecticut Probate Court
seeking a determination as to the validity of Peter’s
exercise of the [p]owers of [a]ppointment,’’ and, ‘‘if a
final [nonappealable] court determination has not been
issued prior to November 20, 2018, validating the exer-
cise of any [p]ower of [a]ppointment,’’ the sale of Peter’s
stock will be rescinded and the respective trusts will
be returned to their ‘‘status prior to June 5, 2018, so as
to avoid incurring any income tax liability . . . .’’
In order to meet the nine month deadline set forth
in the shareholder’s agreement, Peter’s HIHC stock in
the 2002 Trust, the 2005 Trust C, and the 2011 Trust
was sold on June 5, 2018, yielding ‘‘approximately $184
million in proceeds of cash and promissory notes, of
which $7,513,353 was attributable to the shares held by
the 2002 Trust, $150,678,000 to the shares held by the
2005 Trust [C], and $25,909,767 to the shares held by
the 2011 Trust.’’3
On June 26, 2018, pursuant to the memorandum of
understanding, the named defendant, Ralph P. Corasan-
iti, who is the cotrustee of the Ziegler family trusts, filed
a petition for construction of trusts and confirmation
of exercise of powers of appointment in the Probate
Court, seeking a judicial construction of Peter’s 2002
Trust, 2005 Trust C, and 2011 Trust and confirmation
that the exercise of Peter’s powers of appointment in
favor Peter’s Yellow Submarine Trust was valid. Follow-
ing briefing and oral argument, the Probate Court con-
cluded that Peter’s exercise of his powers of
appointment was valid because Peter’s intent to estab-
lish a charitable trust by exercising his powers of
appointment was clear and consistent with the ‘‘modern
practice of Connecticut attorneys [to] recognize the
validity of testamentary transfers to unfunded trusts
through [the] use of a power of appointment.’’ Accord-
ingly, the Probate Court ordered the trustees of the
respective trusts to ‘‘fund Peter’s Yellow Submarine
Trust with the net . . . proceeds of the [sale of the]
HIHC [stock].’’
The plaintiffs, Helen and the cotrustees of her Ziegler
family trusts,4 filed an appeal in the Superior Court
pursuant to General Statutes § 45a-186, alleging that
Peter’s exercise of his nongeneral testamentary powers
of appointment was invalid under both Connecticut and
Illinois law because Peter’s Yellow Submarine Trust
was not funded prior to his death. The defendants,
Peter’s other siblings, their descendants, the trustees
of their family trusts, the trustees of Peter’s trusts, and
the attorney general,5 opposed the plaintiffs’ appeal and
sought to enforce the Probate Court’s order requiring
Peter’s Yellow Submarine Trust to be funded by the net
proceeds of the sale of the HIHC stock in Peter’s 2002
Trust, 2005 Trust C, and 2011 Trust.
The trial court conducted a two day bench trial, at
which the parties stipulated to the operative facts and
presented expert testimony regarding the validity of
Peter’s exercise of his nongeneral testamentary powers
of appointment under Illinois law. At the conclusion of
the bench trial, the trial court determined that Peter
effectively had exercised his powers of appointment
under Connecticut and Illinois law because his intent
to exercise his powers of appointment was clear and
Peter’s Yellow Submarine Trust was a permissible
appointee despite its unfunded status at the time of
Peter’s death. Accordingly, the trial court upheld the
decision of the Probate Court and rendered judgment
in favor of the defendants. This appeal followed.6
On appeal, it is undisputed that Peter expressed a
clear and unequivocal intent to exercise his nongeneral
testamentary powers of appointment in favor of Peter’s
Yellow Submarine Trust. The parties dispute, however,
whether Peter’s exercise of these powers was valid and
effective given that Peter’s Yellow Submarine Trust was
not funded during Peter’s lifetime. The plaintiffs con-
tend that Peter’s Yellow Submarine Trust was not a
permissible appointee under both Connecticut and Illi-
nois law because, in the absence of trust property, it
was not a legal entity to which property could be
appointed in Peter’s will. The defendants respond that
a trust need not be funded at the time of its creation
but may be funded at a later date by the transfer of
property to the trust, including by the exercise of a
testamentary power of appointment. They contend that
Peter’s unequivocal exercise of his nongeneral testa-
mentary powers of appointment in accordance with the
limits set forth in the 2002 Trust, the 2005 Trust C, and
the 2011 Trust funded Peter’s Yellow Submarine Trust
at the time of Peter’s death, thereby creating a valid
and enforceable charitable trust. We agree with the
defendants.
The validity of Peter’s exercise of his nongeneral
testamentary powers of appointment is a question of
law over which we exercise plenary review. See, e.g.,
Powers v. Olson, 252 Conn. 98, 105, 742 A.2d 799 (2000)
(‘‘[w]hen . . . the trial court draws conclusions of law,
our review is plenary and we must decide whether its
conclusions are legally and logically correct and find
support in the facts that appear in the record’’ (internal
quotation marks omitted)). ‘‘A power of appointment
is a power of disposition given to a person over property
not his own by someone who directs the mode in which
that power shall be exercised by a particular instru-
ment. . . . The donor does not vest in the donee of
the power title to the property, but simply vests in the
donee power to appoint the one to take the title. The
appointee under the power takes title from the donor,
and not from the donee of the power. . . . The ultimate
beneficiary really takes from the person who created
the power, the donee of the power acting as a mere
conduit of the former’s bounty.’’7 (Citations omitted;
internal quotation marks omitted.) Linahan v. Lina-
han, 131 Conn. 307, 324, 39 A.2d 895 (1944). Thus, ‘‘[a]
power of appointment cannot transcend the limits upon
it set by the donor . . . .’’ (Citations omitted.) Union &
New Haven Trust Co. v. Taylor, 133 Conn. 221, 228, 50
A.2d 168 (1946).
To determine whether Peter’s exercise of his nongen-
eral testamentary powers of appointment was valid and
effective, we must examine the law governing the trusts
from which he derived his powers. See 2 Restatement
(Second), Conflict of Laws § 274 (a), p. 188 (1971) (‘‘[a]n
appointment made in the exercise of a power created
under a trust to appoint interests in movables is valid
. . . if made . . . in accordance with the law [that]
determines the validity of the trust’’); see also Morgan
Guaranty Trust Co. of New York v. Huntington, 149
Conn. 331, 340–41, 179 A.2d 604 (1962) (New York judg-
ment applying New York law to donee’s exercise of
testamentary power of appointment was not subject to
collateral attack in Connecticut, even though donee was
domiciled in Connecticut and donee’s will was governed
by Connecticut law, because donor’s trust was executed
in New York and trust property was located in New
York); 2 Restatement (Second), supra, § 274, comment
(b), p. 189 (‘‘[a]n appointment made in the exercise of
a power under a trust created by will or inter vivos to
appoint interests in movables is valid if it is valid under
the local law of the state [that] determines the validity
of the trust itself’’). The 2005 Trust C is governed by
Connecticut law, whereas the 2002 and 2011 Trusts are
governed by Illinois law.
Under both Connecticut and Illinois law, the exercise
of a nongeneral power of appointment is valid and effec-
tive if two conditions are met: (1) the donee expressed
an intent to exercise the power of appointment, and
(2) the donee complied with any conditions imposed
on the exercise of the power of appointment by the
donor. See, e.g., General Statutes § 45a-573 (donee of
nongeneral power of appointment ‘‘may appoint to any-
one not expressly excluded from the class of permissi-
ble appointees’’); DiSesa v. Hickey, 160 Conn. 250, 258,
278 A.2d 785 (1971) (exercise of testamentary power
of appointment is valid and effective only if ‘‘the will
contains a reference to the power itself or to the subject
of it, [or] . . . the intention to execute [the power]
is manifest from the fact that the will would remain
inoperative without the aid of the power, or is so clearly
demonstrated by words or acts . . . that the transac-
tion is not fairly susceptible of any other interpretation’’
(internal quotation marks omitted)); Union & New
Haven Trust Co. v. Bartlett, 99 Conn. 245, 255, 122 A.
105 (1923) (‘‘[t]he intention to execute the power must
be apparent and clear, so that the transaction is not
susceptible of any other interpretation, and, if it be
doubtful under all the circumstances, that doubt will
prevent it from being deemed an execution’’ (internal
quotation marks omitted)); see also In re Estate of
MacLeish, 35 Ill. App. 3d 835, 838, 342 N.E.2d 740 (1976)
(‘‘For an exercise of a testamentary power of appoint-
ment to be valid and effective, two requirements must
be satisfied. First, the intention of the testator to exer-
cise the power must be shown. Second, there must
be compliance with any conditions established by the
donor for its exercise.’’).
Because it is undisputed that Peter expressed a clear
and unequivocal intent to exercise his powers of
appointment, we need only address whether he com-
plied with the conditions imposed on his exercise of
those powers. Under the terms of the 2002 Trust, 2005
Trust C, and 2011 Trust, Peter was granted nongeneral
powers of appointment that could be exercised in favor
of any person or charitable organization other than
himself, his creditors, his estate, or the creditors of his
estate. See Ahern v. Thomas, 248 Conn. 708, 739 n.31,
733 A.2d 756 (1999) (‘‘ ‘A power of appointment is gen-
eral if it is exercisable in favor of any one or more of
the following: the [donee] of the power, the [donee’s]
creditors, the [donee’s] estate, or the creditors of the
[donee’s] estate. . . . Any other power of appointment
is a nongeneral one.’ ’’), quoting 2 Restatement (Sec-
ond), Property, Donative Transfers § 11.4, p. 17 (1986);
Cooley v. Cooley, 32 Conn. App. 152, 161–62, 628 A.2d
608 (same), cert. denied, 228 Conn. 901, 634 A.2d 295(1993); see also BMO Harris Bank N.A. v. Towers,
43 N.E.3d 1131, 1139 (Ill. App. 2015) (‘‘[a] power [of
appointment] is said to be general when it is exercisable
in favor of any person whom the donee may select, and
special, limited, or particular when it is exercisable only
in favor of persons or a class of persons designated or
described in the instrument creating the power’’ (inter-
nal quotation marks omitted)). Additionally, Peter’s
powers of appointment could be exercised only ‘‘by
specific reference in his . . . will,’’ meaning that Peter
could not exercise his powers ‘‘during his lifetime
. . . .’’ Northern Trust Co. v. Porter, 368 Ill. 256, 263,
13 N.E.2d 487 (1938); see also 2 Restatement (Second),
Property, Donative Transfers, supra, § 18.2, comment
(b), p. 250 (‘‘[w]hen the donor prescribes that the power
be exercised ’by will,’ it is to be inferred that the donor
meant by these words an instrument [that] is formally
sufficient to be admitted to probate under the applicable
law’’). The record reflects that Peter satisfied these
conditions because Peter’s Yellow Submarine Trust is
a charitable organization other than Peter, Peter’s credi-
tors, Peter’s estate, or the creditors of Peter’s estate,
and Peter exercised his powers by specific reference
in a valid will that was admitted to probate.8
The plaintiffs contend that Peter’s exercise of his
powers of appointment, even if otherwise valid, failed
by operation of law in the present case because Peter’s
Yellow Submarine Trust was not funded during Peter’s
lifetime and, therefore, was not a legal entity to which
property could be appointed. This claim is without
merit.
Under both Connecticut and Illinois law, the delivery
of trust property to a trustee is one of the essential
elements for the creation of a valid and enforceable
trust. See, e.g., Palozie v. Palozie, 283 Conn. 538, 545,
927 A.2d 903 (2007) (‘‘[t]he requisite elements of a valid
and enforceable trust are: ’(1) a trustee, who holds the
trust property and is subject to duties to deal with it
for the benefit of one or more others; (2) one or more
beneficiaries, to whom and for whose benefit the
trustee owes the duties with respect to the trust prop-
erty; and (3) trust property, which is held by the trustee
for the beneficiaries’ ’’), quoting 1 Restatement (Third),
Trusts § 2, comment (f), p. 21 (2003); see also Eychaner
v. Gross, 202 Ill. 2d 228, 253, 779 N.E.2d 1115 (2002)
(‘‘[i]n Illinois, creation of an express trust requires: (1)
intent of the parties to create a trust, which may be
shown by a declaration of trust by the settlor or by
circumstances which show that the settlor intended to
create a trust; (2) a definite subject matter or trust
property; (3) ascertainable beneficiaries; (4) a trustee;
(5) specifications of a trust purpose and how the trust
is to be performed; and (6) delivery of the trust property
to the trustee’’). It is well settled that ‘‘[a] trust cannot
be created unless there is trust property in existence
and ascertainable at the time of the creation of the
trust. . . . In the absence of trust property there is at
most an instrument of trust, or a plan or promise to
create a trust.’’ (Citation omitted.) 1 Restatement
(Third), Trusts, supra, § 2, comment (i), pp. 22–23.
Nonetheless, ‘‘a trust may . . . be created later if and
when a transfer of property to the trustee is made with
reference to that agreement or instrument.’’ Id., p. 23.
Thus, a trust need not be funded contemporaneously
with the execution of the trust documents, so long as
it is funded at a later point in time by the delivery of
trust property to a trustee.
Peter’s Yellow Submarine Trust was unfunded prior
to Peter’s death and, therefore, was not a valid and
enforceable charitable trust during Peter’s lifetime.
Nonetheless, it became a valid and enforceable charita-
ble trust after Peter’s death through the exercise of his
nongeneral testamentary powers of appointment in his
will to fund Peter’s Yellow Submarine Trust with the
proceeds of the sale of the HIHC stock in his 2002 Trust,
2005 Trust C, and 2011 Trust. Indeed, under the common
law, a trust need not exist prior to the exercise of a
power of appointment. Instead, ‘‘a trust may be created
by . . . an exercise of a power of appointment by
appointing property to a person as trustee for one or
more persons who are objects of the power . . . .’’9
Id., § 10 (d), p. 145; see In re Breault’s Estate, 29 Ill.
2d 165, 178, 193 N.E.2d 824 (1963) (implicitly recogniz-
ing that trust may be created by exercise of testamen-
tary power of appointment if will reflects donee’s clear
intent to exercise power of appointment); see also Gar-
field v. State Street Trust Co., 320 Mass. 646, 657, 70
N.E.2d 705 (1947) (donee validly exercised general tes-
tamentary power of appointment to create valid trust);
Shriners Hospital for Crippled Children v. Citizens
National Bank, Covington, Virginia, 198 Va. 130, 136–
37, 92 S.E.2d 503 (1956) (same). Peter exercised his
nongeneral testamentary powers of appointment by
directing in his will ‘‘that all of the [HIHC] [s]hares be
sold in accordance with the [s]hareholder’s [a]greement
and the net proceeds of such sale shall be distributed
to . . . Peter’s Yellow Submarine Trust, to be added to
principal and applied for such organization’s charitable
purposes,’’ and fulfilled the formal requirements neces-
sary to complete the creation of Peter’s Yellow Subma-
rine Trust as a valid and enforceable charitable trust.
Section 401 (3) of the Uniform Trust Code, which
recently was adopted in Connecticut and Illinois, codi-
fies this common-law rule.10 See Unif. Trust Code § 401
(3) (2000), 7D U.L.A. 134 (2018). Under both Connecti-
cut and Illinois law, ‘‘[a] trust may be created by . . .
exercise of a power of appointment . . . in favor of a
trustee . . . .’’ General Statutes § 45a-499v (3); accord
760 Ill. Comp. Stat. Ann. 3/401 (3) (West Cum. Supp.
2020).11 The official commentary accompanying the Uni-
form Trust Code confirms that an inter vivos trust that
was not funded during the donee’s lifetime may be
completed by the testamentary exercise of a power of
appointment. See Yale University v. Blumenthal, 225
Conn. 32, 38, 621 A.2d 1304 (1993) (‘‘[a] court can prop-
erly consider the official comments as well as the pub-
lished comments of the drafters as a source for
determining the meaning of an ambiguous provision [of
a uniform act]’’) (internal quotation marks omitted));
see also Zaabel v. Konetski, 209 Ill. 2d 127, 134–35,
807 N.E.2d 372 (2004) (considering official comment to
uniform act to clarify statutory ambiguity). According
to the commentary accompanying § 401 of the Uniform
Trust Code, ‘‘a trust is not created until it receives
property,’’ but trust property ‘‘need not be transferred
contemporaneously with the signing of the trust instru-
ment. A trust instrument signed during the settlor’s
lifetime is not rendered invalid simply because the trust
was not created until property was transferred to the
trustee at a much later date, including by contract after
the settlor’s death.’’ Unif. Trust Code § 401, comment,
supra, 7D U.L.A. 134. Accordingly, it is clear that, pursu-
ant to § 45a-499v (3) and 760 Ill. Comp. Stat. Ann. 3/
401 (3), Peter created a valid and enforceable charitable
trust, Peter’s Yellow Submarine Trust, through the exer-
cise of his nongeneral testamentary powers of
appointment.
The plaintiffs also contend that Peter’s exercise of
his nongeneral testamentary powers of appointment
was invalid and ineffective because he appointed the
proceeds of the sale of the HIHC stock to a trust, rather
than a trustee. We disagree for two reasons. First,
although a trustee, like trust property, is necessary for
the creation of a ‘‘complete trust,’’ a trustee ‘‘may be
temporarily absent without destroying the trust or pre-
venting its creation.’’ 1 Restatement (Third), Trusts,
supra, § 2, comment (f), p. 21; see White v. Fisk, 22
Conn. 31, 53 (1852) (‘‘[o]ur courts have recognized the
validity of charitable bequests, not only where the gifts
have been to a person or corporation, having a legal
capacity to take, but also to voluntary unincorporated
associations existing for benevolent or charitable pur-
poses, and have supplied these latter with trustees to
receive, hold and manage the funds given for the uses
designated, even though these were somewhat unde-
fined and uncertain’’); Golstein v. Handley, 390 Ill. 118,
125, 60 N.E.2d 851 (1945) (‘‘[I]t is elementary that courts
of equity will not permit a trust to fail because no trustee
is designated. In such cases, the court will appoint a
trustee for the purpose of carrying out the trust.’’);
Unif. Trust Code § 401, comment, supra, 7D U.L.A. 134
(‘‘[w]hile this section refers to transfer of property to
a trustee, a trust can be created even though for a period
of time no trustee is in office’’). Because ‘‘[a] trust can
. . . be created without notice to or acceptance [of the
trust property] by a trustee’’; Unif. Trust Code § 401,
comment, supra, 7D U.L.A. 134; we perceive no critical
distinction in this context between the appointment of
trust property to a trust and the appointment of such
property to a trustee.
Second, it is axiomatic that charitable trusts, which
are intended to confer a public benefit on ‘‘the welfare
of . . . individuals and . . . the community,’’ must be
construed ‘‘with the utmost liberality, in order to carry
out the charitable purposes of the donor.’’ (Internal
quotation marks omitted.) Bridgeport-City Trust Co.
v. Bridgeport Hospital, 120 Conn. 27, 32, 179 A. 92(1935); see Coit v. Comstock, 51 Conn. 352, 377 (1884)
(‘‘Charities are highly favored in law, and they have
always received a more liberal construction than the
law allows to gifts to individuals. . . . Gifts to charita-
ble uses are highly favored in law, and will be most
liberally construed in order to accomplish the intent of
the donor; and trusts [that] cannot be supported in ordi-
nary cases . . . will be established and carried into
effect [when] it is to support a charitable use.’’ (Citations
omitted; internal quotation marks omitted.)); Hinsdale
v. Chicago City Missionary Society, 375 Ill. 220, 231,
30 N.E.2d 657 (1940) (‘‘[c]haritable gifts are viewed with
peculiar favor by the courts, and every presumption
consistent with the language contained in the instru-
ments of gift will be employed in order to sustain
them’’); Franklin v. Hastings, 253 Ill. 46, 50, 97 N.E.
265 (1911) (‘‘[Charitable] gifts are looked upon with
peculiar favor by the courts, which take special care
to enforce them, and every presumption consistent with
the language used will be indulged to sustain them. If
a testator has manifested a general intention to give to
charity, the charity is regarded as the matter of sub-
stance, and the gift will be sustained, though it may not
be possible to carry it out in the particular manner
indicated.’’). Peter expressed a clear and unequivocal
intent to create a charitable trust for the exclusive bene-
fit of quadriplegics and their caregivers, and we must
construe Peter’s exercise of his nongeneral testamen-
tary powers of appointment liberally to effectuate his
charitable purpose. In light of the rule of liberal con-
struction, we conclude that Peter validly and effectively
exercised his nongeneral testamentary powers of appoint-
ment to direct the proceeds of the sale of the HIHC
stock held in his 2002 Trust, his 2005 Trust C, and his
2011 Trust to Peter’s Yellow Submarine Trust.
The judgment is affirmed.
In this opinion the other justices concurred.
1
December 6, 2021, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
2
Section 3.12 of the 2005 Trust C provides in relevant part: ‘‘Upon the
[b]eneficiary’s death . . . Trust C shall terminate; and the trustees shall
distribute the then remaining property of such trust in such amounts, either
outright or in further trust, to or for the benefit of any one or more persons
or organizations, as the [b]eneficiary by specific reference in his or her
will shall appoint to receive the same; provided, however, that this limited
testamentary power of appointment . . . shall not be exercisable in favor
of the [b]eneficiary, his or her creditors, his or her estate, or the creditors
of his or her estate . . . .’’ (Emphasis in original.)
3
Section 3.2 of the 2011 Trust provides in relevant part: ‘‘Upon the [p]ri-
mary [b]eneficiary’s death, the [p]rimary [b]eneficiary, by specific reference
in his or her will, may appoint the remaining property of the [p]rimary
[b]eneficiary’s [t]rust in such amounts, either outright or in further trust,
as follows:
‘‘(A) If my husband, Peter M. Ziegler, is the [p]rimary [b]eneficiary, he
shall have a limited power to appoint all or any portion of the property of
the [p]rimary [b]eneficiary’s [t]rust to or for the benefit of any one or more
persons and/or charitable organizations.
***
‘‘(C) Notwithstanding the foregoing, no limited power of appointment
granted to the [p]rimary [b]eneficiary hereunder shall be exercisable in favor
of such [p]rimary [b]eneficiary, his or her creditors, his or her estate, or
the creditors of his or her estate.’’
4
The sale later was rescinded pursuant to the memorandum of understand-
ing. The rescission has no apparent bearing on this appeal.
5
At the time she filed her complaint, Helen and Corasaniti were cotrustees
of Helen’s Ziegler family trusts. During the pendency of the present litigation,
Helen resigned as cotrustee and removed Corasaniti as cotrustee, replacing
herself and Corasaniti with Stephen D. Benjamin (Stephen) and Scott A.
Weisman, respectively. Weisman and Stephen subsequently were substituted
as plaintiffs on behalf of Helen’s family trusts. Helen continued to remain
a plaintiff in her individual capacity. We hereinafter collectively refer to
Helen, Weisman, and Stephen as the plaintiffs.
6
The descendants of the other Ziegler siblings are Renfrew Brighton,
Whitney Brighton, Hadley Brighton, Kelson Brighton, Anabel Brighton, Mac
Brighton, Jackie Ziegler, Cecily Ziegler, and Thomas James Story. In addition
to participating in the present litigation in their individual capacities, Karl
H. Ziegler, Cynthia Z. Brighton, and Renfrew Brighton also represent the
interests of Peter’s Yellow Submarine Trust as trustees and cotrustee, respec-
tively, and William T. Ziegler and Karl H. Ziegler represent the interests of
Trusts A and C under The William Ziegler III Revocable Trust as trustees.
Corasaniti is a party to the present action as the trustee of Peter’s 2002
Trust, 2005 Trust C, and 2011 Trust.
The attorney general entered an appearance in the present action pursuant
to General Statutes § 3-125, which provides in relevant part that the attorney
general ‘‘shall represent the public interest in the protection of any gifts,
legacies or devises intended for public or charitable purposes. . . .’’
We hereinafter collectively refer to these parties as the defendants.
7
The plaintiffs appealed from the judgment of the trial court to the Appel-
late Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-2.
8
‘‘The donor is the person who brings the power of appointment into
existence,’’ and ‘‘[t]he donee is the powerholder.’’ 2 Restatement (Second),
Property, Donative Transfers § 11.2 (1) and (2), p. 12 (1986). In this case,
William Ziegler III and Marie Longner Ziegler were the donors, and Peter
was the donee.
9
The plaintiffs contend, for the first time in their reply brief, that Peter’s
exercise of his powers of appointment was invalid and ineffective because
the charitable purpose of Peter’s Yellow Submarine Trust is not apparent
from the face of Peter’s will and, therefore, that it is unclear whether Peter’s
Yellow Submarine Trust is a permissible appointee without consulting extra-
testamentary evidence of Peter’s intent, such as the trust instrument, in
violation of the donors’ requirement that Peter exercise his powers by
specific reference in his will. ‘‘It is a well established principle that arguments
cannot be raised for the first time in a reply brief.’’ (Internal quotation marks
omitted.) Bovat v. Waterbury, 258 Conn. 574, 585 n.11, 783 A.2d 1001 (2001).
Arguments must be raised in an appellant’s ‘‘original brief . . . so that the
issue as framed . . . can be fully responded to by the appellee in its brief,
and so that [an appellate court] can have the full benefit of that written
argument.’’ (Internal quotation marks omitted.) Id., 585–86 n.11. We therefore
decline to address the plaintiffs’ belated argument.
10
Because Peter funded Peter’s Yellow Submarine Trust through the exer-
cise of a nongeneral testamentary power of appointment, rather than a
bequest or devise, we conclude that the Uniform Testamentary Additions
to Trusts Acts of Connecticut and Illinois are inapplicable to the present
case. See General Statutes § 45a-260 (a) (2) (‘‘[a] will may validly devise or
bequeath property to the trustee or trustees of a trust . . . regardless of
the existence, size, or character of the corpus of the trust’’ (emphasis
added)); 755 Ill. Comp. Stat. Ann. 5/4-4 (West 2007) (‘‘[t]he existence, size
or character of the corpus of the trust is immaterial to the validity of the
bequest’’ (emphasis added)). Instead, we focus our analysis on the law
governing the creation of a trust via a donee’s exercise of a power of
appointment.
11
Section 401 (3) of the Uniform Trust Code provides that ‘‘[a] trust may
be created by . . . exercise of a power of appointment in favor of a trustee.’’
Unif. Trust Code § 401 (3) (2000), 7D U.L.A. 134 (2018).
12
Both § 45a-499v and 760 Ill. Comp. Stat. Ann. 3/401 (3) became effective
after the commencement of the present action but are retroactively applica-
ble to trusts created and judicial proceedings commenced before their effec-
tive date, ‘‘unless the court in which the judicial proceeding is pending finds
that application of a particular provision . . . would substantially interfere
with the effective conduct of the judicial proceedings or prejudice the rights
of the parties.’’ General Statutes § 45a-487t (3); see also 760 Ill. Comp. Stat.
Ann. 3/1506 (4) (West Cum. Supp. 2020). For the reasons explained in the
text of this opinion, the trial court correctly determined that retroactive
application of these statutes does not substantially interfere with the effec-
tive conduct of the judicial proceedings or prejudice the rights of the parties
because the ‘‘applicable language . . . merely confirms and codifies preex-
isting law; it does not authorize a new method of trust creation [or] change
the rights of the parties.’’