Heisinger v. Dillon (In Re Heisinger) , 168 Conn. App. 467 ( 2016 )

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CODY B. HEISINGER v. ANN H. DILLON ET AL.
(AC 37967)
IN RE PROBATE APPEAL OF
CODY B. HEISINGER*
(AC 37969)
Beach, Sheldon and Sullivan, Js.
Argued May 16—officially released September 27, 2016
(Appeals from Superior Court, judicial district of
Hartford, Complex Litigation Docket, Dubay, J.)
Ralph P. Dupont, for the appellant (plaintiff).
James R. Fogarty, for the appellee (named
defendant).
Linda L. Morkan, with whom, on the brief, was
Christopher J. Hug, for the appellees (defendant Robert
A. Bartlett, Jr., et al.).
Opinion
SHELDON, J. In these two related actions, the plain-
tiff, Cody B. Heisinger, appeals from the summary judg-
ments rendered by the trial court in favor of the
defendant Ann H. Dillon, and the defendant trustees
Robert Bartlett, Jr., and Frederick M. Tobin. Both
actions arise from a dispute between the plaintiff and
the trustees concerning the latters’ decision, following
the death of Frank Heisinger, the plaintiff’s father and
Dillon’s brother, to distribute income from a certain
trust that previously was payable to Frank Heisinger
to Dillon rather than to the plaintiff. In 1950, Francis
Bartlett, the plaintiff’s great grandfather and Dillon’s
grandfather, drafted a will in which he created a trust
to benefit his descendants. Pursuant to the terms of
the trust, Frank Heisinger and Dillon each began to
receive a 25 percent share of the trust income upon the
death of their mother, Jane Bartlett Heisinger, in 1991.
Upon Frank Heisinger’s death in 2007, the trustees
began to distribute his 25 percent share of the trust
income to Dillon. The plaintiff, claiming that that share
should then be distributed to him, as his father’s sole
heir, instead of to Dillon, initiated these two actions.
In the first action, Cody B. Heisinger v. Ann H. Dillon
et al. (AC 37967) (declaratory judgment action), the
plaintiff sought a declaratory judgment against Dillon
and the trustees, construing the trust to provide that
following his father’s death, the trust income formerly
distributed to his father should be distributed to him
rather than to Dillon. In the second action, In re Probate
Appeal of Cody B. Heisinger (AC 37969) (probate
action), the plaintiff appealed from a Probate Court
order approving an interim accounting of the trust’s
assets, including distributions to Dillon of income pre-
viously distributed to Frank Heisinger before his death.
After all parties in the two actions filed and argued
motions for summary judgment, the trial court con-
cluded that the plaintiff was not entitled to receive his
deceased father’s distribution of trust income, and thus
rendered summary judgment in favor of the defendants
in both actions. The plaintiff appeals, claiming that the
trial court erred in construing the trust not to entitle
him to receive his father’s share of the trust income.
We disagree with the plaintiff, and we thus affirm the
summary judgment rendered in favor of the defendants
in the declaratory judgment action and dismiss the
appeal in the probate action as moot.
The following undisputed facts are relevant to this
appeal. Francis A. Bartlett signed his last will and testa-
ment on December 11, 1950. The will created a trust
for the benefit of his descendants, the corpus of which
was funded by the common and preferred stock of the
F. A. Bartlett Tree Expert Company and the Bartlett
Realty Company. The provisions of the will directed
that the income of the trust would be paid to his wife,
Myrtle K. Bartlett, until her death, and then paid in
equal shares to his two children, Robert A. Bartlett and
Jane Bartlett Heisinger, for and during their respective
lives.1 The will further provided that when Robert A.
Bartlett or Jane Bartlett Heisinger died, his or her half
of the trust income would be paid thereafter to his
or her respective children.2 The will did not expressly
provide for how income of the trust that was payable
either to the children of Robert A. Bartlett, on the one
hand, or to the children of Jane Bartlett Heisinger, on
the other, would be distributed among his or her surviv-
ing children upon the death of one or more, but not
all, of such children. It did, however, provide for the
separate termination of the trust in two equal portions,
one for the benefit of Robert A. Bartlett’s descendants
and the other for the benefit of Jane Bartlett Heisinger’s
descendants, as follows. Upon the death of Jane Bartlett
Heisinger’s last surviving child who was in being at the
time of Francis Bartlett’s death, the Heisinger portion
of the trust would terminate and 50 percent of the trust
principal would be distributed to her children, with any
children of those children taking a deceased parent’s
share, per stirpes. Upon the death of Robert A. Bartlett’s
last surviving child who was in being at the time of
Francis Bartlett’s death, the Bartlett portion of the trust
would terminate and the other 50 percent of the trust
principal would be distributed to his children and/or
grandchildren in the same manner.3
When Jane Bartlett Heisinger died in 1991, the trust-
ees began to distribute one half of the trust income, in
two equal shares of 25 percent each, to her two children:
Frank Heisinger and Dillon. Frank Heisinger died in
2007,4 after which the trustees began to distribute his
25 percent share of the trust income to Dillon. The
plaintiff claims that this 25 percent share should be
paid to him.
On July 18, 2013, the plaintiff filed a revised complaint
in the declaratory judgment action, which was the oper-
ative complaint at the time of the court’s summary
judgment ruling. In that three count complaint, the
plaintiff (1) sought advice, pursuant to General Statutes
§§ 52-15 and 52-29,6 and Practice Book §§ 17-547 through
17-59, as to his entitlement to his father’s share of the
trust income after his death; (2) sought damages from
the trustee defendants for breach of fiduciary duty;
and (3) sought damages and prejudgment interest from
Dillon for unlawfully receiving and retaining the share
of trust income to which the plaintiff claims he is
entitled.
The plaintiff filed a complaint in the probate action
on August 26, 2013, claiming that he was aggrieved by
the Probate Court’s approval of an interim accounting
of the trust for the period from January 1, 2009 through
December 31, 2011. The plaintiff requested an order
and judgment that the Probate Court lacked subject
matter jurisdiction to issue its order and decree approv-
ing the interim accounting of the trust and an order and
decree that the interim accounting be held in abeyance
pending the outcome of the declaratory judgment
action. In the alternative, the plaintiff requested that
the interim accounting be accepted without res judicata
or collateral estoppel effect pending final determination
of the declaratory judgment action.
All of the parties filed motions for summary judgment
in both the declaratory judgment action and the probate
action.8 The trial court heard argument on all of the
motions for summary judgment9 together on April 13,
2015. On May 4, 2015, it issued a single memorandum of
decision granting the defendants’ motions for summary
judgment in both actions. The court explained its deci-
sion as follows: ‘‘[T]he proper starting point for the
court’s analysis is the language of the trust. As pre-
viously stated, the clause at issue provides, in relevant
part as follows: ‘Upon the death of my daughter, Jane
Bartlett Heisinger . . . I direct that one-half of the net
income from said trust fund be paid to the children of
my said daughter, in equal shares, until the death of
her last surviving child, who was in being at the time
of my death, and upon the death of said last surviving
child of my said daughter, in being at the time of
my death, I give, devise and bequeath one-half of the
principal of said trust fund to the children of my said
daughter, in equal shares, freed from said trust, the
children of any deceased grandchild to take the share
which the parent would have taken, if living, per stirpes
and not per capita, freed from said trust.’ . . .
‘‘The highlighted language clearly provides that Jane
Bartlett Heisinger’s children (Frank Heisinger and Ann
Dillon) are to receive her portion of the trust income,
in equal shares, until the death of her last surviving
child that was in being at the time of Francis A. Bartlett’s
death. Frank Heisinger was born in 1950 and Ann Dillon
was born in 1953. Francis A. Bartlett died in 1963. The
plaintiff, on the other hand, was not born until 1985.
Therefore, he was plainly not a life in being at the time
of Francis A. Bartlett’s death. The highlighted language
indicates that it was Francis A. Bartlett’s intent to pro-
vide trust income to Jane Bartlett Heisinger’s children,
in equal shares, until the death of her last child. As we
know, Jane Bartlett Heisinger’s daughter, the defendant
Dillon, is still alive. As a result, Dillon is entitled to the
full ‘Heisinger portion’ of the trust income until her
death. Thereafter, ‘the children of any deceased grand-
child,’ such as the plaintiff, will take ‘the share which
the parent would have taken, if living, per stirpes and
not per capita, freed from said trust.’ ’’ (Emphasis in
original.)
The court rejected the plaintiff’s contention that
Stanley v. Stanley, 108 Conn. 100, 142 A. 851 (1928),
stands for the dispositive proposition that ‘‘ ‘when there
are multiple income beneficiaries, a surviving income
beneficiary is not entitled to the entire trust income’.’’
Rather, the trial court stated that the court in Stanley
was merely ‘‘interpreting the language of a specific tes-
tamentary document,’’ not ‘‘[setting] forth a general rule
of testamentary construction . . . .’’
The court then reasoned that the default rules of
construction set forth in the Restatement (Second) of
Trusts supported its conclusion, noting that it is ‘‘proper
for the court to use the Restatement (Second) of Trusts,
which was published in 1959, as opposed to the relevant
section of the Restatement (Third) of Trusts, which was
not published until 2003, because the relevant law is
that which was in existence at the time of the drafting
of the trust document at issue.’’
On appeal, the plaintiff claims that the trial court
erred in rendering summary judgments in favor of the
defendants and requests that we reverse those judg-
ments and remand the case with direction to render
partial summary judgment in his favor in the declaratory
action as to his entitlement to receive his father’s share
of the trust income following his father’s death.10 The
defendants maintain that the trial court properly inter-
preted the trust to require that Frank Heisinger’s share
of the trust income be paid to Dillon until her death.11
The parties agree that a decision interpreting the trust
in favor of the defendants in the declaratory judgment
action also would be conclusive of the probate action.12
The plaintiff argues that the language of the trust
does not expressly provide for the distribution of trust
income upon his father’s death. Accordingly, he argues
that we should turn to provisions in the Restatement
(Third) of Trusts and the Restatement (Third) of Prop-
erty to supply the default construction rules. The defen-
dants argue, however, that the intent of Francis Bartlett
is clear, and that, if we conclude that it is not, we should
look to the Restatement (Second) of Trusts and the
Restatement (First) of Property, which were in exis-
tence closer to the time his will was drafted.
‘‘Practice Book § [17-49] provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits 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.
In deciding a motion for summary judgment, the trial
court must view the evidence in the light most favorable
to the nonmoving party. . . . In evaluating the propri-
ety of a summary judgment, we are confined to an
examination of the pleadings and affidavits of the par-
ties to determine whether (1) there is no genuine issue
as to any material fact, and (2) the moving party is
entitled to judgment as a matter of law.’’ (Citation omit-
ted; internal quotation marks omitted.) Miller v. United
Technologies Corp., 233 Conn. 732, 744–45, 660 A.2d
810 (1995). Here, the only determination necessary is
whether the moving party is entitled to judgment as
a matter of law because ‘‘[t]he construction of a will
presents a question of law’’; (internal quotation marks
omitted.) Corcoran v. Dept. of Social Services, 271
Conn. 679, 698, 859 A.2d 533 (2004); and there are no
disputed material factual issues. Finally, ‘‘[s]ummary
judgment rulings present questions of law; accordingly,
[o]ur review of the . . . decision to grant [a] . . .
motion for summary judgment is plenary.’’ (Internal
quotation marks omitted.) Misiti, LLC v. Travelers
Property Casualty Co. of America, 308 Conn. 146, 154,
61 A.3d 485 (2013).
We first turn to the language of the will in order to
determine the intent of the testator. ‘‘It is well settled
that in the construction of a testamentary trust, the
expressed intent of the testator must control.’’ Gimbel
v. Bernard F. & Alva B. Gimbel Foundation, Inc., 166
Conn. 21, 26, 347 A.2d 81 (1974). ‘‘In seeking the inten-
tion of the testator, resort must first be had to the will
itself.’’ Hoenig v. Lubetkin, 137 Conn. 516, 519, 79 A.2d
278 (1951).
We conclude that the intent of Francis Bartlett, as
expressed in his will, is clear: if Frank Heisinger prede-
ceased his sister, Dillon, his share of the trust income
must be paid to Dillon for her lifetime. Contrary to the
plaintiff’s reading of the will, it does not evince an
overall purpose of providing an income stream to Fran-
cis Bartlett’s great grandchildren. The will provides that
income shall ‘‘be paid to the children of [Jane Bartlett
Heisinger], in equal shares, until the death of her last
surviving child, who was in being at the time of [Francis
Bartlett’s] death.’’ The condition of ‘‘the death of [Jane
Bartlett Heisinger’s] last surviving child’’ has not
occurred and, regardless, the plaintiff is not a child of
Jane Bartlett Heisinger, and thus is not entitled to a
distribution of income.
Francis Bartlett was aware of how to draft a provision
in which a great grandchild would take in place of a
deceased grandchild. In distributing the trust principal,
the will states, ‘‘[T]he children of any deceased grand-
child to take the share which the parent would have
taken, if living, per stirpes . . . .’’ The distribution of
income, however, is limited to Francis Bartlett’s wife,
children, and grandchildren.
Notably, even the language distributing the trust prin-
cipal upon the termination of the trust focuses on Fran-
cis Bartlett’s grandchildren, not his great grandchildren:
‘‘I give devise and bequeath one-half of the principal of
said trust fund to the children of my said [son/daughter],
in equal shares, freed from said trust, the children of
any deceased grandchild to take the share which the
parent would have taken, if living, per stirpes and not
per capita, freed from said trust.’’ The will thus supports
the conclusion that Francis Bartlett’s intention in creat-
ing the trust was to have trust income payable only to
his wife, his children and his grandchildren, during their
lifetimes, while reserving only per stirpes distributions
of the trust’s remaining principal, upon its termination,
for his great grandchildren.
Because we have concluded that the intent of the
testator is clear, it is not necessary for us to turn to
default rules of construction. We note, however, that
if it were necessary to resort to a default rule of con-
struction, the default rule of construction in existence
at the time the will was drafted would govern. Hartford
National Bank & Trust Co. v. Birge, 159 Conn. 35, 43,
266 A.2d 373 (1970) (‘‘[an attorney] may be assumed to
have been familiar with accepted rules of construction
as of the time the will was drawn’’). Although the
Restatement (Second) of Trusts had not yet been pub-
lished at the time Francis Bartlett’s will was drafted,
the rules announced therein support our construction
of the trust and is an expression of the default rules of
construction in existence in 1950.
Section 143 (2) of the Restatement (Second) of Trusts
provides: ‘‘If a trust is created under which the income
is payable to two or more beneficiaries and the principal
is payable to another on the death of the survivor of
the income beneficiaries, and one of them dies, the
survivor or survivors are entitled to the income until the
death of the last survivor, unless the settlor manifested a
different intention.’’ Comment (b) to § 143 (2) provides:
‘‘Where the income under a trust is payable to several
beneficiaries, and there is a gift over to another on the
death of the survivor of the beneficiaries, and one of
the beneficiaries dies, the disposition of the share of the
income which was payable to the deceased beneficiary
depends upon the settlor’s manifestation of intention.
Where there is no provision in the terms of the trust
as to its disposition, the question is what the settlor
would probably have intended. Usually the inference
is that he intended that the income should be divided
among the surviving beneficiaries. This is true even
though the beneficiaries are not referred to as a class.
It may appear from the circumstances, however, that
the settlor would have preferred that the income should
be paid to the estate of the deceased beneficiary, until
the death of the last surviving beneficiary. Or it may
appear that he intended the income to be paid to or
accumulated for the beneficiary in remainder. Or it may
appear that he did not intend to make any disposition
of the share of the income of the deceased beneficiary,
in which case the income would be payable to the
settlor’s estate until the death of the last surviving bene-
ficiary. See Restatement of Property, § 115.’’13 1
Restatement (Second), Trusts § 143 (2), p. 303 (1959).
The Restatement (Second) of Trusts is an expression
of the rules of construction in existence in 1950, as
demonstrated by its citation to cases decided before
1950. See 3 Restatement (Second), Trusts § 143, Appen-
dix, reporter’s notes, p. 218 (1959), citing Loring v.
Coolidge, 99 Mass. 191, 191 (1868); Clarke v. Rathbone,
221 Mass. 574, 109 N.E. 651 (1915); Old Colony Trust
Co. v. Treadwell, 312 Mass. 214, 43 N.E.2d 777 (1942);
Camden Safe Deposit & Trust Co. v. Fricke, 99 N.J. Eq.
506, 133 A. 882 (1926); Rhode Island Hospital Trust
Co. v. Thomas, 73 R.I. 277, 54 A.2d 432 (1947); Will of
Levy, 234 Wis. 31, 289 N.W. 666, 290 N.W. 613 (1940).
Finally, the cases relied upon by the plaintiff, Hart-
ford-Connecticut Trust Co. v. Gowdy, 141 Conn. 546,
107 A.2d 409 (1954), and Stanley v. Stanley, supra, 108
Conn. 100, do not set forth a general rule of construction
that is different from that in the Restatement (Second)
of Trusts. Those cases merely interpret the language of
the specific documents at issue. ‘‘Indeed, in the con-
struction of a will or trust, precedents are usually incon-
clusive, since the same or substantially similar
expressions seldom occur in different wills or trust
agreements. And precedents are entitled to little weight
where they do not involve precisely analogous language
used by testators or settlors who are surrounded by
like circumstances at the execution of the will or trust
agreement. In each case, it is the intention expressed
by the particular language employed which must be
construed.’’ Hartford National Bank & Trust Co. v.
Birge, supra, 159 Conn. 42–43.
The plaintiff urges us to rely on § 49 of the
Restatement (Third) of Trusts14 and § 26.9 of the
Restatement (Third) of Property;15 however, those sec-
tions were published in 2003 and 2011, respectively. An
attorney drafting a will cannot be expected to be famil-
iar with default rules of construction published more
than one-half of a century later.
Even so, the plaintiff maintains that the rules promul-
gated in the Restatement (Third) of Trusts do not con-
flict with the provisions in the Restatement (Second)
of Trusts, but rather describe an exception for multigen-
erational and multibeneficiary trusts that was not
described in the Restatement (Second) of Trusts. The
plaintiff, however, has not presented any legal authority
upon which we could conclude that such an exception
was an accepted rule of construction in 1950. Even if
it were the prevailing default rule of construction at
that time, it would not override the testator’s intent,
which we have found to be clear in this case. Accord-
ingly, the trial court did not err in construing Francis
Bartlett’s will to exclude the plaintiff from receiving
income from the trust after his father’s death, and thus
properly granted summary judgment on that ground.
Because we reach that conclusion, the plaintiff’s appeal
in the probate action is moot.
The judgment is affirmed in the declaratory judgment
action. The appeal in the probate action is dismissed
as moot.
In this opinion the other judges concurred.
* The appeal in the second case originally was filed with the caption Cody
B. Heisinger v. Probate Appeal. The caption has been changed to reflect
that the Probate Appeal is not a party. It should be noted that the microfiche
version of the Appellate Court Record and Briefs in this case will be found
under the original title.
1
The will directed the trustees ‘‘to pay the net income therefrom, quarter-
annually, to my wife, Myrtle K. Bartlett, for and during the term of her
natural life, and upon her death, or should she predecease me, then I direct
that the net income from said trust fund be paid, in equal shares, quarter-
annually, to my son, Robert A. Bartlett, and my daughter, Jane Bartlett
Heisinger, for and during the term of their respective lives.’’
2
The will provided: ‘‘Upon the death of my son, Robert A. Bartlett, or
should he predecease me, and my wife, then upon the death of my wife I
direct that one-half of the net income from said trust fund be paid to the
children of my said son, in equal shares, until the death of the last surviving
child of my son who was in being at the time of death, and upon the death
of said last surviving grandchild in being at the time of death, I give devise
and bequeath one-half of the principal of said trust fund to the children of
my said son, in equal shares, freed from said trust, the children of any
deceased grandchild to take the share which the parent would have taken,
if living, per stirpes and not per capita, freed from said trust. . . .
‘‘Upon the death of my daughter, Jane Bartlett Heisinger, or should she
predecease me, and my wife, then upon the death of my wife, I direct that
one-half of the net income from said trust fund be paid to the children of
my said daughter, in equal shares, until the death of her last surviving child,
who was in being at the time of my death, and upon the death of said last
surviving child of my said daughter, in being at the time of my death, I give,
devise and bequeath one-half of the principal of said trust fund to the children
of my said daughter, in equal shares, freed from said trust, the children of
any deceased grandchild to take the share which the parent would have
taken, if living, per stirpes and not per capita, freed from said trust.’’
3
The will also provided for the distribution in the event that Jane Bartlett
Heisinger died without leaving any surviving children: ‘‘In case my said
daughter shall die without leaving her surviving any children, then I direct
that all of the net income from said trust fund be paid to my said son, Robert
A. Bartlett, as aforesaid, and upon his death, I give devise and bequeath the
net income from said trust fund to his children, in equal shares, until the
death of his last surviving child who was in being at the date of my death,
and upon the death of said last surviving child, in being at the time of my
death, I give, devise and bequeath the principal of said trust fund to the
children of my said son, in equal shares, freed from said trust, the children
of any deceased grandchild to take the shares which the parent would have
taken, if living, per stirpes and not per capita, freed from said trust.’’ The
trust had a parallel provision in the event that Robert A. Bartlett died without
leaving any surviving children.
4
The parties dispute when Frank Heisinger died; Dillon’s appellate brief
states that he died in 2008.
5
General Statutes § 52-1 provides: ‘‘The Superior Court may administer
legal and equitable rights and apply legal and equitable remedies in favor
of either party in one and the same civil action so that legal and equitable
rights of the parties may be enforced and protected in one action. Whenever
there is any variance between the rules of equity and the rules of the common
law in reference to the same matter, the rules of equity shall prevail.’’
6
General Statutes § 52-29 (a) provides: ‘‘The Superior Court in any action
or proceeding may declare rights and other legal relations on request for
such a declaration, whether or not further relief is or could be claimed. The
declaration shall have the force of a final judgment.’’
7
Practice Book § 17-54 provides: ‘‘The judicial authority will, in cases
not herein excepted, render declaratory judgments as to the existence or
nonexistence (1) of any right, power, privilege or immunity; or (2) of any
fact upon which the existence or nonexistence of such right, power, privilege
or immunity does or may depend, whether such right, power, privilege or
immunity now exists or will arise in the future.’’
8
On November 3, 2014, the plaintiff filed a motion for summary judgment
in the declaratory judgment action, and on December 9, 2014, the trustee
defendants filed a cross motion for summary judgment in the declaratory
judgment action and a motion for summary judgment in the probate action.
The following day, Dillon filed a cross motion for summary judgment in the
declaratory judgment action and a motion for summary judgment in the
probate action. On February, 23, 2015, the plaintiff filed a motion for sum-
mary judgment against Dillon in the probate action.
9
Although no motion to consolidate was ever filed, the trial court
addressed all of the motions for summary judgment in a single memorandum
of decision.
10
The parties do not dispute that the ‘‘Heisinger portion’’ of the trust
principal will not be distributed until the passing of Dillon, at which point
the plaintiff will be entitled to Frank Heisinger’s share of the trust principal.
11
Dillon asserted as an alternative ground for affirmance that the first
accounting approved by the Probate Court is entitled to full faith and credit
under General Statutes § 45a-24. We will not address this alternative ground
in light of our conclusion that summary judgment was properly rendered.
12
In the probate action, the plaintiff claims that the Probate Court lacked
subject matter jurisdiction to approve the interim trust accounting before
final judgment was rendered in the declaratory judgment action. Assuming
that jurisdiction existed, the plaintiff also reiterated his claim that he is
entitled to his father’s share of the trust income. Because we conclude that
the plaintiff is not entitled to his father’s share of the trust income, his
claims in the probate action are moot, and we will not address them. ‘‘Moot-
ness raises the issue of a court’s subject matter jurisdiction and is therefore
appropriately considered even when not raised by one of the parties. . . .
Mootness is a question of justiciability that must be determined as a threshold
matter because it implicates [a] court’s subject matter jurisdiction. . . . We
begin with the four part test for justiciability established in State v. Nardini,
187 Conn. 109, 445 A.2d 304 (1982). . . . Because courts are established to
resolve actual controversies, before a claimed controversy is entitled to a
resolution on the merits it must be justiciable. Justiciability requires (1)
that there be an actual controversy between or among the parties to the
dispute . . . (2) that the interests of the parties be adverse . . . (3) that
the matter in controversy be capable of being adjudicated by judicial power
. . . and (4) that the determination of the controversy will result in practical
relief to the complainant. . . . [I]t is not the province of appellate courts
to decide moot questions, disconnected from the granting of actual relief
or from the determination of which no practical relief can follow. . . . In
determining mootness, the dispositive question is whether a successful
appeal would benefit the plaintiff or defendant in any way.’’ (Citations
omitted; emphasis omitted; internal quotation marks omitted.) In re Jorden
R., 293 Conn. 539, 555–56, 979 A.2d 469 (2009).
13
Section 115 of the Restatement (First) of Property provides: ‘‘When an
otherwise effective conveyance creates concurrent estates for life held as
a tenancy in common, and also creates a future estate limited to take effect
on the death of the survivor of the expressly designated life tenants, then,
in the absence of a manifestation of an inconsistent intent, such conveyance
also creates in favor of each such life tenant a remainder estate for life in
the share of each other such life tenant, which remainder takes effect in
possession only if the first life tenant outlives the life tenant as to whose
share such remainder estate is created.’’ 1 Restatement (First), Property
§ 115, p. 359 (1936).
14
Comment (c) (3) to § 49 of the Restatement (Third) of Trusts provides
in relevant part: ‘‘Where the terms of the trust make no express provision
for the situation, the normal inference is that the settlor intended the income
share to be paid to the issue (if any) of the deceased income beneficiary
in the typical case of this type in which the remainder is to pass to the
descendants of the income beneficiaries upon the survivor’s death. This
presumed result applies whether or not the beneficiaries are described in
class terminology. It may appear from language of the trust or the circum-
stances, however, that the settlor would have preferred: (i) that the income
be paid to or divided among the surviving income beneficiary or beneficiaries
(as ‘cross remainder’), even if the beneficiaries are not described as a class
. . . .’’ 2 Restatement (Third), Trusts § 49, comment (c) (3), p. 247 (2003).
15
Comment (e) (1) to § 26.9 of the Restatement (Third) of Property pro-
vides in relevant part: ‘‘A gap potentially arises if the terms of the trust
direct that the trust principal is to be distributed on the death of the last
living income beneficiary, and if the terms of the trust make no express
provision for the distribution of the share income that a deceased income
beneficiary other than the last living income beneficiary had been receiv-
ing. . . .
‘‘A gap arises if the income beneficiary’s income interest is limited to the
beneficiary’s lifetime. The traditional rule of construction is that the gap is
filled by an implied cross remainder to the living income beneficiary or
beneficiaries. See Restatement [(First)] of Property § 115; Illustration 3. An
exception, however, arises if the remainder in trust principal is to pass to
the issue of the beneficiaries upon the survivor’s death. In such a case,
filling the gap by implying an income interest in favor of the deceased
beneficiary’s issue from time to time living would be more consistent with
the transferor’s overall plan of disposition.’’ 3 Restatement (Third), Property
§ 26.9, comment (e) (1), p. 541 (2011).