Hall v. Schoenwetter ( 1996 )

CALLAHAN, C. J.

The issue in this appeal is whether a finder’s fee for the recovery of property paid to the plaintiff, Marcelle Hall, the executrix of the estate of Julian Leon Altman (decedent), by an insurer, Lloyd’s of London (Lloyd’s), in exchange for the surrender by the plaintiff of a violin possessed by the decedent at the time of his death should be included in his estate or should belong to the plaintiff individually. The plaintiff appeals from a judgment of the trial court that the finder’s fee was required to be included in the decedent’s estate. We affirm the judgment of the trial court.

This is the saga of the mysterious disappearance of a 1713 Stradivarius violin known as the “Gibson” from Carnegie Hall in 1936 and its reappearance in Bethel after the decedent’s death in 1985. Although the long lost Gibson has been recovered, precisely what occurred at Carnegie Hall in 1936 remains clouded by the passage of time and a dying man’s death bed equivocation.¹

The decedent died a resident of Bethel on August 12, 1985, leaving a last will and testament.² Thereafter, on October 15,1985, the plaintiff, the decedent’s wife, was appointed executrix of his estate. On May 15, 1986, she filed an Inventory and S-2 Succession Tax Return reflecting estate assets of $39,624.44. The Connecticut department of revenue services issued a certificate of no tax due on June 6, 1986, subject to the case being reopened if additional transfers were discovered.³ Subsequently, the Bethel Probate Court ordered the plaintiff to file an interim accounting based on complaints made by the defendant, Sherry Altman Schoenwetter, the decedent’s daughter and a legatee under his will.⁴ The plaintiff filed the interim accounting on February 6, 1991. The defendant objected to the plaintiffs omission from the accounting of a finder’s fee in the amount of $263,475.75 received by the plaintiff from Lloyd’s in exchange for the violin.

The Bethel Probate Court conducted hearings to determine the validity of the defendant’s objection. On the basis of the evidence presented, the court sustained the objection, and ordered the plaintiff to file a new accounting that included the finder’s fee and to post a bond in the amount of $300,000. The plaintiff appealed from the Probate Court’s judgment to the Superior Court pursuant to General Statutes § 45a-186.⁵ After a trial,⁶ the Superior Court affirmed the Probate Court’s judgment and ordered the plaintiff to include the finder’s fee plus interest in the decedent’s estate. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).⁷

The Bethel probate judge made findings of fact, which the trial court adopted and supplemented with other findings gleaned from testimony received at trial. Sometime after 1970, the plaintiff began a relationship with the decedent in Washington, D.C. From the beginning of the relationship until his death, the decedent, a professional musician, possessed a violin that he played at recitals, concerts and, more often, at various restaurants and hotels. In 1983, the couple moved to Bethel. They eventually married in 1985, sometime after doctors had diagnosed the decedent as having stomach cancer. The plaintiff made several visits to the decedent, whose health was failing rapidly, at Charlotte-Hungerford Hospital in Torrington where he was receiving treatment. Shortly before he died, the decedent revealed to the plaintiff that the violin he had played throughout his life was actually a famous Stradivarius violin known as the Gibson. The Gibson had been stolen in 1936 from the dressing room of a world renowned violinist named Bronislaw Huberman while Huberman was performing at Carnegie Hall in New York City. Lloyd’s, the insurer of the Gibson, paid Huberman approximately $30,000 to compensate him for the loss of the violin, and thereby acquired title to the instrument. The police never solved the crime.

After the decedent’s death, the plaintiff obtained verification that the instrument was indeed the long lost Gibson. She then retained an attorney who negotiated the relinquishment of the violin to Lloyd’s, in exchange for which Lloyd’s agreed to pay the plaintiff a finder’s fee of 25 percent of the net proceeds brought by the sale of the violin. On February 12,1988, the Gibson was sold for $1,200,000. Thereafter, on February 26, 1988, Lloyd’s paid the plaintiff $263,475.75 as a finder’s fee.

In response to the defendant’s objection to the plaintiffs failure to include the finder’s fee in the decedent’s estate, the plaintiff claimed that, based on statements made to her by the decedent and newspaper clippings found in the canvass case that housed the violin, it was the decedent who had stolen the violin from Huberman in 1936.⁸ The plaintiff argued consequently that, because a thief should not benefit from his crime, neither should his estate. She contended therefore that the finder’s fee should not be included among the estate’s assets. Although in its memorandum of decision the trial court made no specific finding that the decedent actually had stolen the violin, the court quoted at length from the plaintiffs testimony, in which she asserted that the decedent was in fact the thief, and appeared to proceed on the assumption that the decedent had acquired the violin illegally.⁹ The trial court concluded, however, that because the violin, no matter how acquired, had been in the decedent’s possession at the time of his death, and because the plaintiff had acquired it in her capacity as executrix, she had a fiduciary duty to include the value of the finder’s fee in the decedent’s estate.

In her arguments to this court, the plaintiff essentially repeats those made in the trial court. The plaintiff contends that, because the decedent stole the violin, he never acquired good title to the instrument and, therefore, the finder’s fee was not an asset of the estate for which the plaintiff was required to account. The plaintiff attempts to distance this case from the hornbook proposition that “possession is itself a protected property right.”¹⁰ She argues that she simply did the right thing when she returned the violin to Lloyd’s, its rightful owner. We find the plaintiffs arguments unpersuasive.

Initially, we note the unsurprising paucity of case law, both in Connecticut and nationwide, pertinent to the issue before us. To reach our decision, we turn to fundamental concepts of fiduciary responsibility and property law. At all times subsequent to her appointment as executrix, the plaintiff served as a fiduciary for the decedent’s estate. See General Statutes § 45a-199 (executrix is fiduciary); see also Papa v. New Haven Federation of Teachers, 186 Conn. 725, 745 n.15, 444 A.2d 196 (1982) (fiduciary includes relationships such as executor and executrix). An executrix has a fiduciary responsibility “to maintain an undivided loyalty to the estate”; Ramsdell v. Union Trust Co., 202 Conn. 57, 65, 519 A.2d 1185 (1987); and must diligently represent “the rights of the heirs and distributees and also those of creditors.” Finnegan v. LaFontaine, 122 Conn. 561, 567, 191 A. 337 (1937). Although executors and administrators are not trustees, they “occupy a position in many respects analogous [to trustees] . . . and many of the rules determining the powers and duties of trustees apply to them.” Hall v. Meriden Trust & Safe Deposit Co., 103 Conn. 226, 233, 130 A. 157 (1925). “One of the most fundamental duties of the trustee is that he must display throughout the administration of the trust complete loyalty to the interests of the cestui que trust. He must exclude all selfish interest and also all consideration of . . . third persons.” (Internal quotation marks omitted.) Phillips v. Moeller, 148 Conn. 361, 369, 170 A.2d 897 (1961). “A trustee must always be loyal to his trust.” Conway v. Emeny, 139 Conn. 612, 621, 96 A.2d 221 (1953). Similarly, an executrix must remain loyal to the estate that she is administering and must not act out of self-interest or for the interests of parties other than the heirs, distributees, and creditors of the estate.

General Statutes § 45a-341 (a)¹¹ requires executors and executrices to gather, appraise, and inventory all property of the decedent’s estate at the time of his death, except real property located outside the state. Section 45a-341 (a) (3) provides that the inventory of a decedent’s estate shall include both tangible and intangible personal property. This court has stated that “[t]he estate of a deceased person consists of property the title to or an interest in which is derived from him . . . American Surety Co. of New York v. McMullen, 129 Conn. 575, 582-83, 30 A.2d 564 (1943). “The inventory of an estate may properly contain any property which may be claimed to have belonged to the deceased when the circumstances are such as to make the matter of his title doubtful, leaving the question of title to be litigated in an ordinary action at law.” Searle v. Crampton, 118 Conn. 42, 46, 170 A. 480 (1934); see also Lynch v. Skelly, 138 Conn. 376, 378, 85 A.2d 251 (1951).

Under the common law, possession of personal property raises a rebuttable presumption of ownership.¹² 73 C.J.S. 237, Property § 36 (b) (1983); see Savannah Bank & Trust Co. v. Great American Indemnity Co., 303 F.2d 247, 250 (1st Cir. 1962); Commonwealth v. Gildea, 17 Mass. App. 177, 181, 456 N.E.2d 1157 (1983); State v. Campos, 61 N.M. 392, 393, 301 P.2d 329 (1956); People v. Florus, 67 Misc. 2d 809, 812, 325 N.Y.S.2d 127 (1971); Matter of Estate of Burns, 585 P.2d 1126, 1130 (Okla. App. 1978). Property in the possession of a decedent at the time of his death is presumptively an asset of his estate. 33 C.J.S. 1083, Executors and Administrators § 125 (1942); see Hurley v. Noone, 347 Mass. 182, 187-88, 196 N.E.2d 905 (1964) (decedent’s possession of currency in safe deposit box established prima facie case of her ownership); Matter of Buckler, 227 App. Div. 146, 149, 237 N.Y.S. 242 (1929) (decedent’s possession of certain currency before death established prima facie case of her ownership thereof); Haywood v. Kukuchka, 55 Wyo. 41, 45, 95 P.2d 71 (1939) (decedent’s possession of car, along with other indicia of title, established prima facie case of ownership); see also Hope v. Cavallo, 163 Conn. 576, 581, 316 A.2d 407 (1972) (“[owner] is not a technical term and, thus, is not confined to a person who has the absolute right in a chattel, but also applies to a person who has possession and control thereof’); Antenucci v. Hartford Roman Catholic Diocesan Corp., 142 Conn. 349, 355, 114 A.2d 216 (1955) (party in possession of real property regarded as owner except in contest with true title holder); Chapel-High Corp. v. Cavallaro, 141 Conn. 407, 411, 106 A.2d 720 (1954) (same).

Once the Probate Court appointed the plaintiff executrix of the decedent’s estate, the plaintiff undertook a fiduciary duty obligating her to act in the best interests of the estate and the distributees of the decedent’s will, which included the defendant and the decedent’s sister. Section 45a-341 (a) (1) required the plaintiff to gather and inventory all of the decedent’s property so that a proper distribution of his estate might be made. The violin, having been in the possession of the decedent at the time of his death, was an asset of his estate. The plaintiff therefore should have included the finder’s fee, the realized value of the violin, in the decedent’s estate regardless of whether the decedent had an unassailable title to the instrument during his lifetime. See General Statutes § 45a-341 (a) (1) and (4). Instead of doing so, however, the plaintiff violated her fiduciary duty to act in the best interests of the estate by retaining the finder’s fee for herself. Rather than increasing the value of the decedent’s estate — which would have benefited the decedent’s distributees and creditors, in whose best interests the plaintiff was bound to act — the plaintiff disregarded her fiduciary duty and enriched herself by exchanging a possession of the estate for the finder’s fee.¹³

The plaintiffs argument that a thief should not benefit from his crime strikes a dissonant note in light of the facts of this case. Although morally compelling in the abstract, the plaintiffs argument is logically inconsistent with her actions since, by negotiating for and accepting the finder’s fee on her own behalf, the plaintiff appropriated to herself, in breach of her fiduciary duty, whatever value the violin had to the estate. It has long been a principle of common law that “[t]he party in possession [of property] is regarded by the law as the owner, except in a contest with one who has true title.” (Internal quotation marks omitted.) Antenucci v. Hartford Roman Catholic Diocesan Corp., supra, 142 Conn. 355; Chapel-High Corp. v. Cavallaro, supra, 141 Conn. 411; see also Anderson v. Gouldberg, 51 Minn. 294, 295, 53 N.W. 636 (1892), citing Armory v. Delamirie, 1 Strange 504, 93 Eng. Rep. 664 (1722). In a suit by a possessor of property against a converter, the converter may not defend by asserting that a third person is the true title holder of the property unless the converter is in privity of title with the third person. See Russell v. Stocking, 8 Conn. 236, 241-42 (1830); Goss v. Bisset, 411 S.W.2d 50, 53 (Ky. App. 1967); Thomsen v. State, 70 Wash. 2d 92, 97-98, 422 P.2d 824 (1966); see also R. Boyer, Survey of Property (3d Ed. 1981) pp. 683-84. The plaintiff had no right or title to the violin except as executrix, and she certainly was not in privity with Lloyd’s. The plaintiff attempts to distinguish the present case from those cases holding that the first thief prevails in an action against the second thief by noting that in this case the rightful owner, Lloyd’s, eventually received the property. That the rightful owner eventually recovered the stolen property does not change the fact that the plaintiff, in her individual capacity, never had any right whatsoever to the violin. The only possible party that possessed better title than the decedent was Lloyd’s. The plaintiff, however, did not accede to the interest of Lloyd’s or acquire privity of title with Lloyd’s when she misappropriated the violin from the estate.¹⁴

In sum, the plaintiff as executrix was under a fiduciary duty to act not in her own self-interest, but in the best interests of the estate. She failed to do so and she may not justify the breach of her fiduciary duty in 1988 by virtue of the fact that the decedent may have stolen the violin in 1936. No matter how the Gibson was obtained, it was a possession of the decedent’s estate, and once the plaintiff chose to negotiate with Lloyd’s for the finder’s fee her fiduciary duty required that she negotiate on behalf of the estate, not herself.

The judgment is affirmed.

In this opinion NORCOTT, MCDONALD and PETERS, Js., concurred.

1 See footnote 8.

2 In his will, the decedent bequeathed certain shares of stock to the plaintiff, divided jewelry between the plaintiff and Sherry Altman Schoenwetter, his daughter, and divided the remainder of the estate equally among the plaintiff, Schoenwetter, and Sylvia Altman, his sister.

3 Although the Connecticut department of revenue services, inheritance tax division, is a defendant in this action, it submitted no brief in this appeal. References to the defendant in this opinion are to the named defendant Sherry Altman Schoenwetter.

4 The estate of Sylvia Altman, the decedent’s sister, is also a defendant in this action.

5 General Statutes § 45a-186 provides: “Appeals from probate. Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the superior court for the judicial district in which such court of probate is held, except that any appeal under subsection (b) of section 12-359 or subsection (b) of section 12-367 shall be filed in the judicial district of Hartford-New Britain. Except in the case of an appeal by the state, such person shall give security for costs in the amount of one hundred fifty dollars, which may be paid to the clerk, or a recognizance with surety annexed to the appeal and taken before the clerk or a commissioner of the superior court or a bond substantially in accordance with the bond provided for appeals to the supreme court. Appeals from any decision rendered in any case after a record is made under sections 51-72 and 51-73 shall be on the record and shall not be a trial de novo.”

6 “When entertaining an appeal from an order or decree of a Probate Court, the Superior Court taires the place of and sits as the court of probate.” Kerin v. Stangle, 209 Conn. 260, 264, 550 A.2d 1069 (1988); Satti v. Rago, 186 Conn. 360, 365, 441 A.2d 615 (1982). In probate appeals, a Superior Court “may admit any evidence that was received by the Probate Court or could have been received by it . . . [but] may not receive evidence that the Probate Court could not have received because it came into existence subsequent to the Probate Court hearing.” (Citations omitted.) Bishop v. Bordonaro, 20 Conn. App. 58, 64, 563 A.2d 1049 (1989).

7 The plaintiff appeals in her individual capacity and in her capacity as executrix of the decedent’s estate.

8 In her testimony to the trial court, the plaintiff recounted her death bed conversations with the decedent regarding the violin and asserted her belief that the decedent was the thief who stole the violin from Huberman in 1936. During one such conversation, the decedent instructed the plaintiff to look inside the violin case, between the outer shell and the protective canvas cover. Inside the case, the plaintiff found numerous documents, including articles from the New York Times, the New York Evening Post, and the New York Herald Tribune, circa 1936, recounting the theft of the Gibson. In addition, the canvass case contained a September, 1977 edition of The Strad, a journal for players of stringed instruments, in which a portion of an article detailing the theft of the Gibson was highlighted.

After reviewing these materials, the plaintiff returned to the hospital and asked the decedent whether the violin was actually the Gibson, to which the decedent responded affirmatively. The plaintiff testified that when she asked how he obtained the violin, the decedent recited different versions. According to the first version, the decedent bought the violin for $100 from a friend who actually had stolen the violin. According to another version, the decedent actually stole the violin himself. The plaintiff also testified that subsequent conversations with the decedent revealed that the decedent and his mother had acted in concert to orchestrate an elaborate plot to steal a valuable violin from a foreign violinist. The decedent’s death bed revelations culminated, according to tire plaintiffs testimony, with his avowal that he was the actual thief.

9 The Probate Court made no findings with respect to how the decedent came into possession of the violin.

10 R. Boyer, Survey of Property (3d Ed. 1981) pp. 683-84.

11 General Statutes § 45a-341 provides in relevant part: “Inventory to be filed. Property included in inventory. Appraisal. Time limits. Sale of personal property. Hearing. Return of sale, (a) (1) An inventory of all the property of every deceased person and insolvent debtor, except real property situated outside the state, duly appraised, shall be made and sworn to by the fiduciary.

“(2) When any personal property of a deceased person or insolvent debtor is outside of this state the court may receive an inventory of such property, accompanied by such evidence of its value as it deems sufficient and sworn to by the fiduciary.

“(3) The inventory and appraisal of the estate of any deceased nonresident shall include only such interest as the decedent had at the time of his death in the real property and tangible personal property situated in this state and intangible personal property, provided intangible personal property shall not be included if the proceeding in this state with regard to such estate is ancillary to a proceeding in another jurisdiction.

“(4) The fiduciary shall appraise or cause to be appraised such inventoried property at its fair market value.

“(b) (1) The fiduciary shall file the inventory in the court of probate having jurisdiction of the estate of the deceased person or insolvent debtor within two months after the acceptance of the bond or other qualification of the fiduciary. . . .”

12 The dissent states that “[t]here is no rebuttable presumption of ownership from possession of stolen property belonging to a known owner,” citing for authority 73 C.J.S. 237, Property § 36 (b) (1983) and two cases. The dissent then quotes from 73 C.J.S. 237, Property § 36 (b) (1983) for the proposition that the presumption of ownership does not arise when there are ascertained and established facts to the contrary. The dissent, however, omits several sentences from the quote, which reads in its entirety: “The presumption of ownership from possession is true only where the character of the possession is wholly unexplained, and is liable to be overcome by any evidence showing the character of the possession. Thus, if the custody and possession of property are shown to be equally consistent with an outstanding ownership in a third person, no presumption of ownership arises solely from possession. However, the presumption of ownership arising from possession may not be rebutted by evidence that the property was in a third person, when offered as a defense by one who claims no title and is a wrongdoer. Presumptions concerning title are never allowable against ascertained and established facts. Thus, a presumption of ownership from possession is not allowable against ascertained and established facts to the contrary.” (Emphasis added.) Id.

The above quoted language is another way of stating that a subsequent thief may not defend an action brought by a prior possessor by asserting that the prior possessor never had title to the property in question. See Russell v. Stocking, 8 Conn. 236, 241-42 (1830); Goss v. Bisset, 411 S.W.2d 50, 53 (Ky. App. 1967); Thomsen v. State, 70 Wash. 2d 92, 97-98, 422 P.2d 824 (1966). Although the dissent correctly suggests that the presumption of ownership arising from possession is easily rebutted, the dissent incorrectly assumes that the plaintiff — who never claimed to possess title to the violin in her individual capacity, or to be in privity with Lloyd’s, the true owner — had the ability to rebut the presumption. See Russell v. Stocking, supra, 241-42; Goss v. Bisset, supra, 53; Thomsen v. State, supra, 97-98; see also footnote 14 (describing rationale for rule).

13 In support of her argument that the violin was not an asset of the decedent’s estate, the plaintiff asserts that the decedent could not have secured a finder’s lee from Lloyd’s during his lifetime and, therefore, that the estate is not entitled to the finder’s fee that she negotiated. The plaintiff, however, stands in a different position than would the decedent had he been alive. She is a fiduciary and as such owes an exclusive duty to the estate to inventory, preserve, and account for any tangible or intangible property possessed by the estate. Since the violin, even if its title was doubtful, was a possession of the estate, she was duty bound, if she was to negotiate to obtain value for it, to negotiate on behalf of the estate, not herself.

14 The rationale for the proposition that a converter of property may not defend an action by a prior possessor of the property by asserting that a third person is the true title holder is “the protection of property and the discouragement of breaches of the peace.” R. Boyer, supra, p. 684. “It is a generally recognized rule that possession is itself a protected property right. Hence a possessor, whether he be a bailee or even a converter who had stolen the goods himself, may recover for their damage, conversion or theft while in his possession. As between a possessor and a wrongdoei-, possession is a sufficient title, and only one with a superior title may contest the possessor’s right. . . . [The subsequent converter’s] conduct is wrongful and should be discouraged, not encouraged. [The subsequent converter] should not be allowed to raise the issue of lack of title in the possessor as this would dilute the law’s protection whenever goods were not in the immediate possession of their owner. [The subsequent converter] can only raise the issue of title when he has a superior one to that of the possessor." (Emphasis added.) Id., pp. 683-84. We emphasize that this case does not present a controversy involving the true title owner of the violin, Lloyd’s, but rather requires us to determine the rights to the finder’s fee for the violin as between a subsequent converter and the legatees of the will of a prior possessor.