Ransom v. Bebernitz

Ransom v. Bebernitz (2000-142); 172 Vt. 423, 782 A.2d 1155

[Filed 24-Aug-2001]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal  revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of  Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any  errors in order that corrections may be made before this opinion goes
  to press.


                                No. 2000-142


Albert L. Ransom	                         Supreme Court

                                                 On Appeal from
     v.	                                         Rutland Superior Court


Phyllis Bebernitz, Chester C. Anderson,	         March Term, 2001 
David Ransom, et al.


David A. Jenkins, J.

John D. Hansen, Rutland, for Plaintiff-Appellee.

Karl C. Anderson of Anderson & Eaton, P.C., Rutland, for Defendants-Appellees.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       AMESTOY, C.J.   This appeal arises from a dispute among great great
  grandchildren over  their respective rights to a certain tract of land
  conveyed by an 1882 probate decree according to the  terms of their great
  great grandfather's will.  Defendants, members of the Anderson family,
  appeal  the Rutland Superior Court's judgment that plaintiff has a 9/31
  interest in the subject land, and the  court's order to partition of the
  property.  Defendants assert that the trial court erred in concluding  that
  (1) the 1882 probate decree is not subject to collateral attack on the
  ground that the will violated  the rule against perpetuities; (2) the will
  did not violate the rule against perpetuities; (3) the  defendants and
  their predecessors in title did not establish a claim for adverse
  possession; (4)  plaintiff and his predecessors in title did not commit
  laches.  We affirm.

 

       On May 30, 1877, Albert Alanson Ransom executed a will that conveyed a
  parcel of land,  hereinafter referred to as the northern mountain lot, to
  his son.  The will provides, in pertinent part:

         I also give to my son Albert VanNess Ransom the use of one 
    half of the remainder of my land joining my home farm on the North 
    and running North to the Town of Hubbardton . . . I give to said 
    Albert that part of the same lying North of such line.  I give the
    same  to the said Albert during his natural life and after his
    decease should  children survive him I give the use of said land
    to them during their  natural lives and to the survivor of them,
    and at the decease of the  survivor of such children I direct that
    said land be divided among  their children equally share and share
    alike.

       On August 26, 1880, Albert Alanson Ransom died, and on September 20,
  1880, his will was  approved by the probate court.  On February 27, 1882,
  the probate court issued a decree of  distribution that was not appealed.

       At the time of the testator's (Albert Alansom Ransom) death, his son
  Albert VanNess  Ransom had only two children, Albert Anson Ransom, who was
  1 year old, and Lillian Ransom  Cook, who was in utero.  Subsequently,
  Albert VanNess Ransom had three additional children.   Upon his death, on
  February 9, 1909, his life estate interest in that property expired, and
  the right of  use and possession of the property passed to his five
  children: Albert Ansom Ransom, Lillian  Ransom Cook, Grace Ransom Anderson,
  Marion Ransom Levanway, and Elihu C. Ransom, who  each took a life estate
  as joint tenants with right of survivorship.  Those five children
  eventually had  thirty one children, to whom the will intended to convey
  the remainder of the life estate divided in  equal shares.  Therefore, in
  1989, when the last surviving grandchild of the testator -- Marion -- died, 
  the will conveyed an equal distribution of the northern mountain lot among
  the testator's great  grandchildren; that is, in 31 shares.

 

       Fritz Anderson married Grace Ransom and in 1915, he purchased the home
  farm that abuts  the northern mountain lot from his mother-in-law.  Their
  children, Ellis and Chester Anderson,  purchased the farm from their father
  in 1940.

       The Andersons did not use the northern mountain lot as a part of the
  farming operation,  because the land is steep and not useful for farming. 
  Other than for a small housewood logging  operation in the 1930's, the
  Andersons did not use the property except for access to other property 
  that they owned.  On July 19, 1940, Fritz Anderson, acting as the agent of
  Albert VanNess Ransom's  five children and all but two of his grandchildren
  (including defendants Chester and Ellis Anderson),  sold and conveyed a
  portion of the property, and distributed money to them from the sale.

       On January 11, 1991, Chester and Ellis Anderson conveyed the rest of
  the property to Ellis'  sons, defendants Eric and Karl Anderson, by
  warranty deed.  In this deed, defendants Chester and  Ellis Anderson
  covenanted that they were the sole owners of the premises and had good
  right and  title to convey the same.  According to deeds in possession of
  defendants, seven other great  grandchildren of the 21 who survived Marion
  Ransom Levanway, the last life tenant, had conveyed  their remainder
  interests by quitclaim deeds to defendants Eric and Karl Anderson, but did
  not record  the conveyance in the land records.

       Plaintiff, Albert L. Ransom, is the son of Lemuel Ransom, one of the
  testator's thirty-one  great grandchildren of the testator.  After hearing
  from his father that the family owned some land in  Hubbardton, he
  researched the genealogy and land records to inquire about the property. 
  In 1988, he  began approaching descendants of the testator, and offering
  them sums of money for their "share" of  the estate.  Since then, he has
  acquired 9/31 of the property.  Also in 1988, he offered to begin 

 

  paying taxes on a share of the northern mountain lot.  This offer was
  declined by Ellis and  Chester Anderson.

       Plaintiff brought a complaint in February 1995, seeking a judicial
  determination of the legal  owners of the property and the ownership
  interest in each such owner, as well as partition of the  portion to which
  the plaintiff is entitled together with an appropriate easement across the
  remaining  portion of the land to provide reasonable access.  The parties
  filed cross motions for summary  judgment and a hearing was held on
  September 11, 1997 on the merits of plaintiff's claims and on  defendants'
  motion for summary judgment. 

       The trial court found that the will did not violate the rule against
  perpetuities and that, even if  it did, the 1882 probate court's decree of
  distribution was conclusive and not subject to collateral  attack.  The
  court also found that the defendants had not acquired the land by adverse
  possession and  that the plaintiff did not commit laches.  The court ruled
  that the plaintiff was entitled to a 9/31 share  of the property, ordered
  partition of that share, and that the plaintiff was further entitled to
  access  across other lands of the Anderson farm.

       Defendants Chester, Ellis, Karl and Eric Anderson (defendants
  Anderson) appeal the trial  court rulings, claiming that the testator's
  will is subject to collateral attack because it violated the  rule against
  perpetuities.  According to defendants Anderson, the rule against
  perpetuities violation  defeats the conveyances set forth in the will, thus
  creating a tenancy in common between the children  of Albert VanNess Ranson
  at his death in 1909.  They further contend that through their occupancy, 
  they adversely possessed the land against their fellow tenants in common. 
  Finally, defendants  contend that the actions of plaintiff and his
  predecessors in title constituted laches, which bar  plaintiff's recovery.

 

                                      I

       On appeal, defendants Anderson contend that Albert Alanson Ransom's
  will violated the rule  against perpetuities, and that the probate decree
  of distribution of 1882 does not prevent the court  from addressing that
  violation.  Defendants, however, must first persuade us that In re Estate
  of  Walker, is either distinguishable from the instant case, or was wrongly
  decided.  119 Vt. 130, 120 A.2d 565 (1956).  They have done neither.

       The Walker case involved the same situation as in this case: a
  subsequent collateral attack  upon an unappealed probate decree.  Id. at
  132, 120 A.2d  at 568.  Relying on In re Wells' Estate, 69  Vt. 388, 38 A. 83 (1897), we held in Walker that an unappealed decree of the probate
  court, even if  erroneous as a matter of fact or law, is conclusive as to
  all matters covered by the decree, including  the provisions of the will
  there in issue, and is not subject to collateral attack.  119 Vt. at 136,
  120 A.2d  at 568.

       Defendants attempt to distinguish Walker arguing that, unlike the
  probate court that reviewed  Albert A. Ransom's will, the probate court in
  Walker had earlier addressed the issue of the rule  against perpetuities
  and had found that the provisions of the will establishing the trust did
  not violate  the rule.  Defendants contend that the material findings set
  forth in Walker contain reference to a  probate court's finding in 1907
  (the date of decree of distribution) that the will in question violated 
  the rule against perpetuities.  But the findings referred to in the Walker
  decision are those of the  probate court appealed in 1956.  There is no
  evidence that the rule against perpetuities was  considered by the original
  probate court when it entered a decree in accordance with the provisions 
  of the will in 1907.  Indeed, the Walker opinion assumes for purposes of
  its decision that the 

 

  determination of the probate court in 1956 that the will probated in 1907
  violated the rule  against perpetuities is correct, but concludes with a
  statement of law directly applicable to this case:

    If the provision or provisions in the will creating the trust
    estate are  now void under the rule against perpetuities they were
    so at the time  the decree was entered.  Here as there an appeal
    could have been  taken to the decree and had it corrected, if
    erroneous.

  Walker, 119 Vt. at 135, 120 A.2d  at 568.

       Defendants similarly fail to find support for their contention that a
  decree of the probate court  cannot be considered conclusive unless it can
  be shown that the probate court initially addressed the  issue of rule
  against perpetuities.  Defendant's assertion that Sparhawk v. Administrator
  of Buel, 9  Vt. 41 (1837), and In re Estate of Valiquette, 122 Vt. 350, 173 A.2d 832 (1961), permit collateral  attack on a probated will is inapposite
  because in those cases the subject matters before the Court  were
  collateral issues to the decree that the probate court had adjudicated. 
  See Sparhawk, 9 Vt. at  77-78 (in accounting proceeding, the court decrees
  which debts administrator is bound to pay, but  whether payment has
  actually been made or not is not material to the question of accounting,
  and  debtors are not precluded from pursuing administrator for the recovery
  of their debt in a separate  proceeding);Valiquette, 122 Vt. at 361, 173 A.2d  at 839 (In an accounting proceeding, the probate  court's approval of
  the accounting does not constitute res judicata to the allocation of stock
  to  income or corpus unless the matter is directly brought before the
  court).

       The decree of distribution of the probate court construes the will and
  adjudicates the title to  the beneficiaries, and its decree is not subject
  to collateral attack.  See Sparrow v. Watson, 87 Vt.  366, 370, 89 A. 468,
  470 (1914).  Even if the probate court committed an error in construing the
  will,  its unappealed decree is binding:

 

    [In making the decree] [t]he construction given to the will was a
    legal  construction, and became the law governing the distribution
    of the  estate.  If there was an error in the distribution of the
    estate, it was an  error of law; and the remedy was by appeal to
    the higher court.  No  appeal having been taken, the law then
    interpreted by the court  became the law of the case.  The
    construction thus given to the will  was a judicial construction. 
    Property rights vested under it; and, for  error in that
    construction, they cannot now be disturbed.

  Leavins v. Ewins, 67 Vt. 256, 257, 31 A. 297, 297 (1894).

       In addition to failing to distinguish the matter before us from
  Walker, defendants have  suggested no plausible reasons for reversing an
  opinion that is consistent with Vermont case law and  statutes intended to
  avoid a harsh and archaic application of the rule against perpetuities. 
  See  Wells'  Estate, 69 Vt. 388, 38 A. 83 ; In re Peck's Estate, 96 Vt.
  183, 118 A. 527 (1922).  We further note  that in 1957, there was a
  significant transformation in the application of the rule against
  perpetuities  in Vermont.  In that year, the Vermont Legislature passed a
  "wait-and-see statute," 27 V.S.A. §§  501-503, which rejected the strict
  enforcement of the rule and provided that the period of perpetuities  be
  measured by actual rather than possible events. (FN1)  The statute
  specifically rejected a  retroactive application by stating that its
  provisions would apply only to wills and instruments taking  effect after
  the enactment of the statute. (FN2)  However, the combined effect of this
  statute with the  Walker decision, 

 

  which precluded collateral attacks on unappealed decrees, reformed the
  application of the  rule in the state of Vermont in already settled estates
  as well as in future instruments. (FN3)

                                     II

       In their answer, defendants Karl and Eric Anderson assert as an
  affirmative defense that they  and their predecessors in title, Chester and
  Ellis Anderson and their predecessor in title Fritz  Anderson have acquired
  title to the subject property by virtue of adverse possession.  Defendants 
  claim that they had used and possessed the land exclusively since 1915 when
  Fritz and Grace  Anderson bought the home farm that abuts the northern
  mountain lot.  They further argue, but were 

 

  unable to prove, that Fritz Anderson first, and then his children payed all
  of the real estate  taxes on the northern mountain lot until 1991.

       "In this state, adverse possession is accomplished through open,
  notorious, hostile and  continuous possession of another's property for a
  period of fifteen years."  Moran v. Byrne, 149 Vt.  353, 355, 543 A.2d 262, 263 (1988) (internal quotations and citations omitted); 12 V.S.A. § 501.  
  Defendants suggest that the statute had commenced to run in 1915; however,
  neither Fritz nor Grace  Anderson could have commenced the adverse
  possession of the property at that time.  Grace  Anderson held a life
  estate in the northern mountain lot; thus, she could not adversely possess 
  against the remaindermen.  A life tenant who takes possession admits her
  right as it was created by  the deed, and cannot repudiate the character of
  the possession that she lawfully holds to assert  possession of a different
  character.  See Ford v. Flint, 40 Vt. 382, 398 (1867).  Moreover, the
  statute  will not commence to run against a remainderman until his right of
  possession commences. See  Bailey v. Woodbury, 50 Vt. 166, 170 (1877). This
  rule is based on the proposition that the  remainderman does not have a
  right of entry and possession during the existence of the life estate,  and
  any right of action for possession does not accrue until the death of the
  life tenant. See Webster  v. Cooper, 55 U.S. How.) 488, 500-01 (1852). 

       Since Grace Anderson could not, as a matter of law, adversely possess
  the property, her  husband, Fritz Anderson, could only have commenced the
  adverse possession of the property if he  were able to adversely possess
  the land against his own wife, the other life tenants and  remaindermen. 
  However, "a husband who takes possession of his wife's land under his 
  right as her husband takes and holds for her, his possession is not
  adverse, and can  never ripen into title."   Superior Oil Corp. v. Alcorn,
  47 S.W.2d. 973, 978 (Ky. 1930).  See also  Union Oil Co. v. Stewart,

 

  110 P. 313, 315 (Cal.1910) (neither spouse can acquire title by adverse
  possession as against  the other in lands of which they have joint use
  during the continuance of the marriage relationship, at  least in the
  absence of color of title).  Moreover, in 1940 Fritz acted as agent,
  attorney and trustee in  the distribution among the life tenants and
  remaindermen of the proceeds of the sale of a portion of  the northern
  mountain lot. This is inconsistent with any claim of title by adverse
  possession on the  part of Fritz Anderson, since he was in fact recognizing
  the ownership and interests of the life  tenants and remaindermen.

       Chester and Ellis Anderson, Fritz and Grace Anderson's children, did
  not take the clear,  unequivocal steps that would be needed to adversely
  possess the property during the period of the  life estates of the
  grandchildren.  "Where a family relationship between claimants is involved,
  proof  of adverse possession must be established by stronger evidence than
  is required in other cases."   Harlow v. Miller, 147 Vt. 480, 484, 520 A.2d 995, 998 (1986).  "In such a situation, the  possession of the land of the
  one by the other is presumptively permissive and amicable."  See id. 
  (internal quotations and citations omitted).  In addition, presumption
  against ouster of a co-tenant can be overcome only "by some overt and
  notorious act or acts of an  unequivocal character, indicating an assertion
  of ownership of the entire premises to  the exclusion of the right of the
  co-tenant."  See Scott v. Leonard, 119 Vt. 86, 102-03, 119 A.2d 691, 700
  (1956).

       Defendants predicate their adverse possession claim on payment of the
  taxes levied against  the subject land; however, the law presumes that
  payment of taxes by one co-tenant is on behalf of  other co-tenants. 
  Adm'rs of Downer v. Smith, 38 Vt. 464, 468 (1866); see also In re Estate of 
  Neil, 152 Vt. 124, 129, 565 A.2d 1309, 1312 (1989).  In addition, the
  obligation to pay taxes was an 

 

  obligation of the life tenants; therefore, if Chester and Ellis Anderson
  paid taxes before their  remainders became possessory, they had a right of
  recovery from the life tenants.  See Brattleboro v.  Smith, 117 Vt. 425,
  428, 94 A.2d 407, 409-10 (1953). Their failure to seek reimbursement from
  the  life tenants does not create any claim against the remaindermen and
  their successors.

       Furthermore, Chester and Ellis Anderson could not as a matter of law
  acquire title by adverse  possession as against the other remaindermen
  prior to 1989, when the life estate expired and the  remainder interests
  became possessory. Where a life estate and remainders in two or more
  persons  have been created in real estate, and the life tenant is still
  living, the co-remaindermen have a  fiduciary relationship to each other
  that no one of them may impair the rights or interests of his co-
  remaindermen. Givens v. Givens, 387 S.W.2d 851, 853 (Ky. 1965). Therefore,
  any interest that they  could have acquired prior to 1989 was held in a
  fiduciary capacity for the benefit of all the  remaindermen.

       Finally, any possession of the northern mountain lot by either
  Chester, Ellis, Eric or Karl  Anderson subsequent to 1989, when the
  remainder interests became possessory upon the death of the  last surviving
  life tenant, is not sufficient to establish a claim of adverse possession
  because the  possession has not been of sufficient duration to satisfy the
  requisite statutory period of fifteen years.  12 V.S.A. § 501.

                                     III

       Defendants also assert laches as an affirmative defense. As
  articulated in Chittenden v.  Waterbury Center Community Church, 168 Vt.
  478, 494, 726 A.2d 20, 30 (1998), "[l]aches is the  failure to assert a
  right for an unreasonable and unexplained period of time when the delay has
  been  prejudicial to the adverse party, rendering it inequitable to enforce
  the right," (internal quotations and 

 

  citations omitted).  The delay must be "unexcused" and prejudicial.  Estate
  of Neil, 152 Vt. at  132, 565 A.2d  at 1314.  We agree with the trial
  court's observation that if the doctrine of laches has  any applicability
  in this case, it would be more equitable to apply it against defendants
  than plaintiff.  Plaintiff and his predecessors in title had no possessory
  rights in the subject property until the death  of the last life tenant,
  Marion Ransom Levanway, thus they could not assert those rights before
  1989.  In contrast, defendants' claims based on the rule against
  perpetuities and adverse possession could  have been brought many years
  ago. There is no basis for disturbing the trial court's conclusion that 
  laches does not bar plaintiff's claim. "[L]aches is so much a matter of
  discretion by the lower court  that its action will not be disturbed unless
  clearly shown to be wrong."  In re Vermont Elec. Coop.,  165 Vt. 634, 635,
  687 A.2d 883, 885 (1994)(internal quotations and citations omitted).

       Affirmed. 



                                       FOR THE COURT:



                                       _______________________________________
                                       Chief Justice




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                                  Footnotes

FN1.  27 V.S.A. § 501 reads:

    Any interest in real or personal property which would violate the 
    rule against perpetuities shall be reformed, within the limits of
    that  rule, to approximate most closely the intention of the
    creator of the  interest.  In determining whether an interest
    would violate said rule  and in reforming an interest the period
    of perpetuities shall be  measured by actual rather than possible
    events.

FN2.  In pertinent part, the statute reads: "This subchapter shall apply
  only to inter vivos  instruments and wills taking effect after the
  subchapter becomes operative." 27 V.S.A. § 502.
  
FN3.  Since Walker precludes a collateral attack to the 1882 distribution
  decree, it is  unnecessary to reach the issue of the rule against
  perpetuities to decide this case.  We note,  however, that there was no
  violation of the rule.  Under the orthodox rule against perpetuities no 
  future interest in property is valid unless it must vest not later than 21
  years (and the  period of actual gestation) after some life in being at its
  creation. Peck's Estate, 96 Vt.  at 186, 118 A.  at 528.  At the time of the
  testator's death, in 1880, two of his grandchildren were in  being: Albert
  Ansom Ransom, who was 1 year old, and Lillian Ransom Cook, who was in
  utero.   Albert died in 1951 and Lillian in 1970.  All of the great
  grandchildren to whom the testator intended  to give the fee in the
  property at issue were born between 1899 and 1939, that is, during the
  lives of  both Albert and Lillian.  As soon as they were born, the
  thirty-one great grandchildren took vested  remainder interests in the
  property, which became indefeasibly vested upon the death of testator's 
  son, Albert VanNess Ransom in 1909.  Defendants contend that the remainders
  of the great  grandchildren would not vest until the death of the last
  surviving grandchild, Marion Ransom  Leavanway, in 1989.  However, there is
  no provision in the will making the remainder contingent  upon survival of
  the last life tenant, and such provision cannot be implied.  The law favors
  early  vesting, and no estate will be held contingent unless positive terms
  are employed in the will  indicating a contrary intention.  In re
  Robinson's Estate, 90 Vt. 328, 332, 98 A. 826, 828 (1916).  When a will is
  fairly open to two constructions, one of which will turn a bequest into an 
  illegal perpetuity, and the other will make it valid and operative, the
  latter should be  preferred.  Peck's Estate, 96 Vt. at 187, 118 A.  at 528. 
  Therefore, absent a specific provision to  give a remainder contingent upon
  survival of the last life tenant, the remainder vested at the earliest 
  possible time; that is, after Albert VanNess Ransom's death, as soon as the
  first great grandchild was  born.  The first of those great grandchildren
  was Ann Ransom, born in 1889, and the last is Anna V.  Ransom Fryzell, born
  in 1939.  Lillian A. Ransom Cook died in 1970.  Therefore, the remainder 
  vested well within the twenty-one-year period after Lillian's death set by
  the rule against  perpetuities.