In re Estate of Mainolfi

In re Estate of Mainolfi (2004-241); 178 Vt. 588; 878 A.2d 287

2005 VT 61

[Filed 01-Jun-2005]

                                 ENTRY ORDER

                                 2005 VT 61

                      SUPREME COURT DOCKET NO. 2004-241

                             FEBRUARY TERM, 2005

  In re Estate of Sara Mainolfi	       }	APPEALED FROM:
                                       }
                                       }
                                       }	Rutland Superior Court
                                       }	
  	                               }
                                       }	DOCKET NOS. 278/302-5-03 Rdcv

                                                Trial Judge: Richard W. Norton

             In the above-entitled cause, the Clerk will enter:


       ¶  1.  The estate of Sara Mainolfi appeals an order by the Rutland
  Superior Court affirming  a Probate Court decision awarding a $75,000
  homestead interest in her former home to the estate of her husband, Frank
  Mainolfi.  The trial court determined that Frank Mainolfi's quitclaim deed
  conveying "all right and title" in the marital home did not convey his
  homestead interest to his wife because the interest had not yet vested at
  the time of the deed, and that his estate was therefore entitled to the
  $75,000 homestead interest after her death.  We affirm.  Title 27 V.S.A. §
  105 vests a surviving spouse with the same interest in the homestead with
  which the decedent spouse was vested at death, and neither spouse can
  transfer or waive the homestead interest before it vests.

       ¶  2.  Sara and Frank Mainolfi married and purchased a home in
  Rutland, Vermont.  They lived in the home together until Sara died on
  December 5, 2001.  Frank continued to live in the home until he passed away
  three weeks later, intestate, on December 26.  Neither Sara nor Frank had
  any children.  Three written instruments form the background to the dispute
  between their estates.

       ¶  3.  First, a quitclaim deed, executed by both Sara and Frank in
  1993, purported to "remise, release, and forever quitclaim[] . . . all
  right and title" in their home to their nephews, Albert Clarino and Thomas
  Olsen, and reserved a life estate for the Mainolfis.  Second, another
  quitclaim deed, executed by the nephews and Frank Mainolfi in 1995,
  quitclaimed all right and title in the same home to Sara, reserving a life
  estate for Frank.  Finally, Sara's will, executed the same day as the
  second quitclaim deed, devised her estate (minus debts, administrative
  expenses, and a bequest) to the nephews as tenants in common. (FN1)    

       ¶  4.  The superior court determined that Frank Mainolfi's estate
  was entitled to a $75,000 interest in the proceeds from the sale of the
  home, pursuant to 27 V.S.A. § 101 and § 105.  The superior court concluded
  that, because the homestead interest is inchoate while both spouses are
  still living and ripens into an absolute right only upon the death of one
  spouse, Frank Mainolfi's 1995 conveyance to his wife by quitclaim deed of
  "all right and title" in the marital home did not convey the homestead
  interest.  Sara Mainolfi's estate appeals, challenging, first, the
  "interpretation of the legal effect of a conveyance by a husband to his
  wife of all his right and title in their marital residence."  Second,
  appellant challenges the trial court's "assumptions of fact where they
  neglected to conduct an evidentiary hearing to support their decision"
  regarding the will- and deed-makers' intent.  We consider each argument in
  turn.

       ¶  5.  Appellant's first argument-that the second quitclaim deed
  conveyed Frank's homestead interest to his wife-is unavailing under the
  plain language of 27 V.S.A. § 105.  The superior court's interpretation of
  the legal effect of the deeds is a conclusion of law; our review is
  nondeferential and plenary.  Vt. Alliance of Nonprofit Orgs. v. City of
  Burlington, 2004 VT 57, ¶ 5, 857 A.2d 305.  

       ¶  6.  Title 27 defines a surviving spouse's homestead interest.  27
  V.S.A. §§ 105, 106.  At a spouse's death, "his or her homestead to [a value
  of $75,000] shall pass to and vest in the surviving spouse . . . and the
  surviving spouse shall take the same estate therein of which [the decedent
  died] seised."  Id. § 105.  The homestead interest vests in the surviving
  spouse simply by virtue of the decedent spouse's death.  In re Cooke's
  Estate, 117 Vt. 336, 340, 91 A.2d 683, 685 (1952).  Before a spouse's
  death, however, neither spouse can convey or waive the inchoate interest in
  the homestead.  Mann v. Mann's Estate, 53 Vt. 48, 54 (1880) (applying 1862
  G.S. tit. 22, ch. 68, § 5, an earlier but substantially identical version
  of the statute, noting that "[t]here was nothing in existence [while both
  spouses were still alive] for the contract to operate upon as a release or
  discharge" and therefore granting the homestead interest to the surviving
  spouse). (FN2)     
        
       ¶  7.  When Frank Mainolfi executed the second quitclaim deed, his
  homestead interest had not yet vested, and thus he had nothing to transfer. 
  The homestead interest is a statutory right, created by operation of law
  only at the death of a spouse.  27 V.S.A. § 105.  The statute does not
  contemplate transfer or waiver of this interest before it vests. 
  Therefore,  Frank Mainolfi did not convey, by the second quitclaim deed,
  his homestead interest to Sara.  

       ¶  8.  The second quitclaim deed served only to transfer to Sara the
  fee interest in the home that she had previously conveyed to the nephews by
  the first quitclaim deed, together with any interest held by Frank at that
  time.  Thereafter, the couple lived together in the home until Sara's
  death.  At Sara's death, under § 105 a homestead interest vested in her
  surviving spouse, Frank.  27 V.S.A. § 105; see also In re Cooke's Estate,
  117 Vt. at 340, 91 A.2d  at 685.  Of course, at any time after Sara's death,
  Mr. Mainolfi could have chosen to convey the now-vested $75,000 homestead
  interest.   Because he did not do so, that interest passed to his estate
  when he died.

       ¶  9.  Appellant's second contention-that the trial court erred in
  not holding an evidentiary hearing as to the will- and deed-makers'
  intent-is raised for the first time on appeal. Appellant's counsel did not
  object to the lack of a hearing at trial, nor did counsel raise the issue
  in its docketing statement with this Court.  Because it was not raised
  below, this Court will not consider the issue.  Fletcher Hill, Inc. v.
  Crosbie, 2005 VT 1, ¶ 20, 16 Vt. L. Wk. 1.  We therefore affirm.

       Affirmed. 


                                       BY THE COURT:



                                       _______________________________________
                                       Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice
     
                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen (Ret.), Chief Justice
                                       Specially Assigned


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                                  Footnotes


FN1.  The will stipulated that, if Frank survived Sara by more than thirty
  days, the estate would be held in trust for him by Thomas Olsen; otherwise
  the estate would go to Olsen and Clarino as tenants in common.  Because
  Frank survived Sara by only twenty-one days, the latter clause was given
  effect.

FN2.  1862 G.S. tit. 22, ch. 68, § 5 provided that if a spouse died leaving
  a widow, "his homestead to the value aforesaid [$500] shall pass to and
  vest in [his widow] . . . and such widow . . . shall take the same estate
  therein of which the decedent died seized . . . ."  Aside from the
  substitution of gender-neutral language, 27 V.S.A. § 105 is substantially
  unchanged since 1880: it provides that, "his or her homestead to the value
  aforesaid [$75,000] shall pass to and vest in the surviving spouse . . .
  and the surviving spouse shall take the same estate therein of which [the
  decedent died] seised."