Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Heisinger v. Dillon

Court of Appeals of Connecticut

September 27, 2016

CODY B. HEISINGER
v.
ANN H. DILLON ET AL. IN RE PROBATE APPEAL OF CODY B. HEISINGER

          Argued May 16, 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.).

          Beach, Sheldon and Sullivan, Js.

          OPINION

          SHELDON, J.

         In these two related actions, the plaintiff, Cody B. Heisinger, appeals from the summary judgments 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 previously distributed to Frank Heisinger before his death. After all parties in the two actions filed and argued motions for summary judgment, the trial court concluded 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 testament 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 surviving 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 trustees 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 operative 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 §§ 52-1[5] and 52-29, [6] and Practice Book §§ 17-54[7] 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 approving 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 judgment[9] 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 decision as follows: ‘‘[T]he proper starting point for the court's analysis is the language of the trust. As previously 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 inbeing 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 provide 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 grandchild, ' 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.