Scott v. HEINONEN

Opinion

The issue in this appeal is whether the executor of an estate, who has been authorized to market certain real property of a decedent to satisfy the financial obligations of the decedent’s estate, has the power to evict an occupant to whom the property has specifically been devised by the will of the decedent. The plaintiff, Arthur E. Scott, Jr., executor of the estate of Barbara H. Scott (decedent), appeals from the trial court’s judgment of possession in a summary process action in favor of the defendant, Mark M. Heinonen. On appeal, the plaintiff claims that the trial court improperly concluded that he does not have the power to evict the defendant, who is occupying certain real property that the plaintiff has been authorized by the Probate Court to market for sale. We agree with the plaintiff and conclude that he was entitled to summary process as a matter of law. Accordingly, the judgment is reversed, and the case is remanded to the trial court with direction to render judgment in favor of the plaintiff.

The following facts and procedural history are taken from the record and the decision of the court. The decedent, who was the mother of the defendant, died on December 1, 2006. Prior to her death, the decedent owned certain real property located in Sherman. The property has two residences — a main house and a cottage. The cottage typically was rented out by the decedent for extra income. Shortly before her death, however, the decedent moved into the cottage with her *579 husband, the plaintiff. At the time of the decedent’s death, the defendant lived in the main house on the property and, as of the date of the court’s judgment, continued to reside there without paying rent, real estate taxes or insurance premiums for the property.

Prior to her death, the decedent executed a last will and testament. In her will, the decedent named the plaintiff as executor of her estate. The decedent also devised her interest in the property to the defendant and his brother, Karl P. Heinonen, in equal shares.

On August 23, 2007, the plaintiff submitted a petition to market and to sell the property to satisfy creditor claims against the estate and administration expenses. On October 2, 2007, the Probate Court for the district of New Fairfield, DeFeo, J., granted the plaintiffs petition to market the property. 1 Thereafter, the plaintiff served the defendant with a notice to quit possession of the premises by February 20, 2008. On April 4, 2008, the plaintiff filed a complaint in the Superior Court, in which he alleged that the defendant has no right or privilege to occupy the property and requested an order for summary process to evict the defendant. In a memorandum of decision filed October 10, 2008, the court, Reynolds, J., found that “[the plaintiff] has tried to market and sell [the property] pursuant to the Probate Court order so that he can pay the debts of the estate and divide the proceeds pursuant to the will. The defendant will not allow a real estate sign to be placed on the property because that could embarrass his children. He will not give the plaintiff access to the house because he does not want the house shown when his children may be home alone.” The court also found that the *580 plaintiff has the power of possession and control to satisfy the debts of the estate by marketing the property. Despite these findings, the court concluded that the plaintiff does not have the power to evict the defendant “without a contract of sale or further order of the Probate Court . . . .”

The facts, as found by the court, are not in dispute. The parties’ disagreement centers on the court’s interpretation of relevant statutes. Resolution of this issue requires us to examine our statutes governing summary process as well as those governing the custody and management of real property following the death of an owner. In doing so, we rely on well established principles of statutory construction. “In construing [astatute], we are mindful of General Statutes § l-2z, which instructs us that [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to determine that [intent and the meaning of a statute] ... § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Internal quotation marks omitted.) State v. Rupar, 293 Conn. 489, 505-506, 978 A.2d 502 (2009).

*581 On appeal, the plaintiff claims that the court improperly concluded that he lacks the power to evict the defendant. The defendant concedes that, were he simply “a stranger or a tenant,” then the plaintiff, as executor of the estate, would have the authority to evict him. The defendant argues that because the property was specifically devised to him in the decedent’s will, the plaintiff lacks the power to evict him without a specific order of the Probate Court, granting the plaintiff possession or a contract of sale for the property.

This appeal, therefore, lies at the intersection of our laws and jurisprudence governing summary process and the custody of real property following the death of an owner. Our statute governing summary process trials, General Statutes § 47a-26d, is clear: when a defendant (1) has ho right or privilege to occupy real property, (2) has been properly served with notice to quit possession or occupancy, (3) did not have title to the property at the time notice to quit was served on him and (4) continues to possess or to occupy the property, the court will render judgment in favor of the plaintiff. 2 In the present case, it is undisputed that the defendant continues to possess and to occupy the property. Therefore, we must determine (1) whether the order of the Probate Court extinguished the defendant’s title, as a devisee, in the property and (2) whether the plaintiff, as executor of the estate, has the power to *582 serve the defendant with notice to quit and to evict him. In part I, we conclude that the defendant does not currently hold title to the property, nor did he hold title at the time notice to quit was served on him. In part II, we conclude that the plaintiff, in his fiduciary capacity as executor of the estate, was authorized to serve the defendant with notice to quit and has the power to evict the defendant. As such, it is our determination that the plaintiff is entitled to summary process as a matter of law.

I

The facts of the present case are unique because the defendant was already residing on the property prior to the decedent’s death and has continued to occupy the property afterward. The plaintiff, therefore, has not brought an action to quiet title but, instead, has brought an action for summary process in an effort to evict the defendant and to eject him from property that he previously has occupied peaceably. It is axiomatic that a defendant cannot be evicted from property if he either currently has a right or privilege to occupy the property or had title to the property at the time notice to quit was served on him. Therefore, the first issue we must address is if and when the defendant’s rights in the property were extinguished.

After a careful review of the language of the relevant statutes in conjunction with our case law, we do not find any support for the defendant’s contention that, following an order by the Probate Court authorizing an executor to market a decedent’s real property so as to satisfy the debts of the estate, a specific devisee maintains any interest in the property that would serve to prevent an action for summary process against him. General Statutes § 45a-428 (a) provides that when the estate of a deceased person is either (1) insolvent or (2) solvent but with no assets from which debts, taxes *583 and administration charges against the estate may be paid other than real property that has either been specifically devised or is forbidden by the terms of a will from being sold or mortgaged, the Probate Court is authorized to order the sale of the decedent’s real property. See Zanoni v. Lynch, 79 Conn. App. 309, 318-20, 830 A.2d 304, cert. denied, 266 Conn. 929, 837 A.2d 804 (2003). In the present case, there are debts against the decedent’s estate. Further, it is uncontested that the Probate Court properly authorized the plaintiff to market the property for sale to satisfy these debts. 3

Although “[i]t is fundamental jurisprudence that title to real property vests immediately at death in a deceased’s heirs, or in devisees upon the admission of the will to probate”; Cardillo v. Cardillo, 27 Conn. App. 208, 212, 605 A.2d 576 (1992); such title is not absolute. Zanoni v. Lynch, supra, 79 Conn. App. 322. General Statutes § 45a-321 governs the custody of real property following an owner’s death. Our Supreme Court has held, pursuant to this statutory framework, that the title of an heir or specific devisee is “defeated should it be necessary for the administration of the estate that [the real property] be sold by order of the court, and subject to the right of the administrator to have possession, care and control of it during the settlement of the estate, unless the probate court shall otherwise order.” (Internal quotation marks omitted.) O’Connor v. Chiascione, 130 Conn. 304, 306, 33 A.2d 336 (1943). 4 Thus, “the fiduciary of a decedent’s estate possesses a limited statutory right to interfere with the passage of title to a devisee. Upon the death of a testator, the title to the real property devised in his will vests in the devisees, *584 subject to the control of the court and possession of the executor during administration. . . . [U]nder the conditions and for the purposes prescribed by statute, as where the personal property is insufficient to pay the debts of the decedent’s estate, his real property and interests therein may be regarded as assets to which his personal representatives may resort.” (Citation omitted; internal quotation marks omitted.) Zanoni v. Lynch, supra, 321.

Given this precedent, a central question we must resolve in our determination of the appeal at hand is at what point, after an executor is authorized to market specifically devised property for sale so as to satisfy the debts of an estate, a devisee’s title and interest in such property is extinguished. The defendant argues that he retains a superior interest in the decedent’s real property until such time that the plaintiff enters a contract of sale on behalf of the estate or the Probate Court orders him to vacate the property. We disagree. “In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.” (Internal quotation marks omitted.) King v. Board of Education, 203 Conn. 324, 332-33, 524 A.2d 1131 (1987). Our legislature has granted the Probate Court the power to authorize the sale of specifically devised property to satisfy the debts of an estate. Common sense dictates that inherent in such an order is a right to immediate possession and control of such property by the administrator of the estate to make the property marketable. Cf. LaFlamme v. Dallessio, 261 Conn. 247, 259, 802 A.2d 63 (2002) (noting that in O’Connor, the Supreme Court interpreted the precursor to § 45a-321 [a] as giving executors and administrators power of possession, care and control over decedent’s real property during administration of estate). If we were to accept the defendant’s *585 argument, we would create an entirely illogical precedent under which any time specifically devised real property was authorized by the Probate Court to be sold, pursuant to § 45a-428, a specific devisee could occupy the real property and frustrate or prevent the executor from exercising his statutory powers. 5 We agree with the plaintiff that such a result would provide specific devisees with an incentive to obstruct an executor’s efforts to sell property because the devisee could take exclusive possession without any of the responsibilities attendant to ownership.

“[W]hen an administrator takes possession of his or her decedent’s real estate such possession relates back to the time of [the] decedent’s death. . . . Accordingly, in such a case the devisees are deemed never to have taken title and, consequently, an executor exercising his power to transfer property does not transfer the title from the devisees, but from the estate.” (Citation omitted; emphasis added; internal quotation marks omitted.) Stepney Pond Estates, Ltd. v. Monroe, 260 Conn. 406, 433 n.28, 797 A.2d 494 (2002). Because the court found it necessary for the plaintiff to have possession and control of the property to market it for sale in compliance with the order of the Probate Court, we conclude that any interest or title in the property to which the defendant would have otherwise been entitled was terminated upon the issuance of the order to market the property for sale by the Probate Court and *586 in fact never came into being; legal title to the property belongs to the estate. See id.

II

The remaining inquiry for us is whether the plaintiff has satisfied the jurisdictional requirement for a summary process action. A party seeking summary process must allege and prove ownership, or that it acts as the legal representative of an owner, of the subject property and assert a demand for possession in the form of a notice to quit. Service of proper notice to quit is a condition precedent to the Superior Court’s having jurisdiction over a summary process action. See Lampasona v. Jacobs, 209 Conn. 724, 728-29, 553 A.2d 175, cert. denied, 492 U.S. 919, 109 S. Ct. 3244, 106 L. Ed. 2d 590 (1989). Although we agree with the finding of the court that it had jurisdiction to hear the plaintiffs action for summary process, we disagree with the court’s determination that the executor is a beneficial owner of the property; 6 we conclude that it is through *587 the executor’s fiduciary power as the legal representative of the estate that he is able to maintain an action for summary process.

General Statutes § 47a-23 (a) provides in relevant part: “When the owner or lessor, or the owner’s or lessor’s legal representative . . . desires to obtain possession or occupancy of any land or building [and] (3) when one originally had the right or privilege to occupy such premises but such right or privilege has terminated . . . such owner or lessor, or such owner’s or lessor’s legal representative . . . shall give notice to each lessee or occupant to quit possession or occupancy . . . .” (Emphasis added.) The statutory definition of “owner” is set forth in General Statutes § 47a-l (e): “ ‘Owner’ means one ... in whom is vested (1) all or part of the legal title to property or (2) all or part of the beneficial ownership and a right to present use and enjoyment of the premises . . . .”

We conclude that the plaintiff, as the legal representative of the owner estate, is in compliance with the provisions of § 47a-23 (a) (3), and, therefore, this summary *588 process action was properly before the Superior Court. As executor, the plaintiff acts as the fiduciary and legal representative of the estate, 7 which in turn holds legal title to the property and, therefore, maintains ownership. As such, we conclude that because legal title to the property rests with the estate of the decedent, it is well within the executor’s power, under his statutory and fiduciary duty to manage the decedent’s real property, to maintain a summary process action on behalf of the estate.

Ill

CONCLUSION

The plaintiff was a proper party, capable of bringing an action for summary process. The court found that the plaintiff served the defendant with proper notice to quit possession, satisfying the jurisdictional requirement. The defendant has failed to do so and continues to occupy the property. The Probate Court granted the plaintiffs request to market the property for sale. As we stated previously, the effect of the order of the Probate Court was to grant to the plaintiff, as executor, the right to possess and to control the property so as to make it marketable. Ergo, because the plaintiff as executor is entitled to possession and control of the property, the specific devisees are deemed never to have taken title. See Stepney Pond Estates, Ltd. v. Monroe, supra, 260 Conn. 433 n.28. Thus, the defendant does not hold title to the property, nor did he hold such title *589 at the time he was served with notice to quit possession. As such, the plaintiff is entitled to summary process as a matter of law.

The judgment is reversed and the case is remanded with direction to render judgment in favor of the plaintiff.

In this opinion the other judges concurred.