Derblom v. Archdiocese of Hartford ( 2021 )

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MARIA J. DERBLOM, EXECUTRIX (ESTATE
OF FRED H. RETTICH), ET AL. v.
ARCHDIOCESE OF HARTFORD
(AC 42630)
Lavine, Prescott and Alexander, Js.*
Syllabus
The plaintiffs, the executrix of the estate of R, several former students of
a defunct Catholic school located in Madison that was the residual
beneficiary of R’s estate, the students’ parents, and M Co., a corporation
operating a private school that is purporting to be the successor to the
defunct school, brought this action for relief against the defendant. After
R died in 2013, the residuary of his estate was distributed to the defunct
school in accordance with his will. In 2018, the defendant announced
that, for financial reasons, it would be closing the defunct school and
establishing a new school in Branford. Some of the parents of the
students attending the defunct school then formed M Co., with the intent
of establishing a new Catholic school in Madison. The plaintiffs alleged
in their complaint that the residuary clause in R’s will created a construc-
tive trust for the benefit of the plaintiffs and that the defendant had a
duty to convey the funds to M Co., as successor to the defunct school,
or to return the funds to R’s estate for distribution to his heirs. The
defendant filed a motion to dismiss, asserting that none of the plaintiffs
had standing to enforce the charitable gift. The trial court granted the
motion and rendered judgment thereon, from which the plaintiffs
appealed to this court. Held that the trial court properly granted the
defendant’s motion to dismiss because the plaintiffs lacked standing:
the trial court did not err in construing R’s bequest as an absolute or
outright gift to the defunct school instead of as an endowment that
created a charitable trust benefitting the plaintiffs; the residuary clause
of the will did not limit the expenditure of principal, restrict the manner
in which the funds could be used, name any beneficiaries or a trustee,
or include any other language evidencing an intent to form a trust or
to exercise any future control over the residue of the estate; moreover,
the trial court did not err in concluding that the special interest exception
to the rule that the attorney general has exclusive authority to bring an
action to enforce charitable gifts was inapplicable to confer standing
to the plaintiffs as the exception is limited to actions involving charitable
trusts and R’s bequest to the defunct school constituted an outright gift,
extending the exception to include charitable gifts would undermine
their nature as, unlike with charitable trusts, when a donor completes
a gift he immediately and irrevocably transfers and relinquishes all
control over the gifted property, and the plaintiffs failed to provide any
legal authority to support their assertion that the exception should be
extended to completed charitable gifts.
Argued October 20, 2020—officially released March 9, 2021
Procedural History
Action, inter alia, seeking the establishment of a con-
structive trust, and for other relief, brought to the Supe-
rior Court in the judicial district of New Haven, where
the court, Pierson, J., granted the defendant’s motion
to dismiss and rendered judgment thereon, from which
the plaintiffs appealed to this court. Affirmed.
Drzislav Coric, with whom was Cody A. Layton, for
the appellants (plaintiffs).
Kay A. Williams, with whom was Lorinda S. Coon,
for the appellee (defendant).
Opinion
PRESCOTT, J. The plaintiffs—Maria J. Derblom, in
her capacity as the executrix of the estate of Fred H.
Rettich;1 eleven former students of Our Lady of Mercy
School (OLM), a defunct Catholic school in Madison,
and their parents;2 and Our Lady of Mercy School of
Madison, Inc., which operates a private school that pur-
ports to be the successor of OLM—appeal from the
judgment of the trial court granting a motion to dismiss
filed by the defendant, the Archdiocese of Hartford,3
on the ground that the plaintiffs lack standing to bring
an action concerning a bequest from Rettich to OLM.
According to the plaintiffs, the court improperly (1)
construed Rettich’s bequest as an outright gift to OLM
rather than as an endowment that resulted in a construc-
tive charitable trust and (2) concluded that the plaintiffs
lack standing because the state’s attorney general has
the exclusive authority to bring an action to enforce
Rettich’s gift and that the plaintiffs’ reliance on a com-
mon-law special interest exception to that exclusive
authority was misplaced because the exception is lim-
ited to actions involving charitable trusts and, thus, is
not applicable in the present case.4 We disagree with
the plaintiffs and affirm the judgment of the court.
The following facts, as alleged in the complaint or
as established by uncontested evidence submitted in
conjunction with the motion to dismiss, and procedural
history are relevant to our resolution of this appeal. In
April, 2012, Rettich executed a will that contained a
residuary clause in favor of OLM ‘‘or its successor, for
its general uses and purposes.’’5 Beginning in 2004, OLM
had become an archdiocesan school under the auspices
of the defendant.
It was important to Rettich that residents of Madison
be able to send their children to a Catholic school in
Madison. Prior to the execution of his will leaving the
residue of his estate to OLM, Rettich had donated
$500,000 to OLM. OLM later sent a letter to Rettich that
marked the anniversary of that donation and informed
him that $200,000 of the donated funds had been used
by OLM to establish an endowment to ‘‘ensure [OLM’s]
future.’’ The letter stated that the money was ‘‘invested
and protected by the Archdiocese of Hartford for the
exclusive use of OLM by US Trust.’’ In his will, Rettich
made no reference to his earlier donation or to any
endowed funds or existing trust benefiting OLM.6
Rettich died on September 27, 2013. Derblom admin-
istered Rettich’s estate and, in April, 2015, she filed a
final accounting of the estate with the Probate Court.
The Probate Court accepted the accounting and ordered
distribution in accordance with it. The amount of
Rettich’s residual estate was $4,745,110.86. The estate
remitted that amount by check to OLM.7
More than two years later, in January, 2018, the defen-
dant announced that it would be closing OLM and
another parish school in Branford, St. Mary School.8 It
indicated that it intended to open a new school, East
Shoreline Catholic Academy (ESCA), which would be
located at the former St. Mary School site in Branford.
According to a press release appended to the underlying
complaint, ‘‘[t]he formation of ESCA is not considered
a merger, because [OLM and St. Mary School] will cease
to exist and a new corporation . . . will be formed.
ESCA, however, will continue to be operated by the
same three parishes [that operated OLM and St. Mary
School].’’
On February 28, 2018, shortly after the announcement
of OLM’s closing, some parents of students attending
OLM, including some of the plaintiff parents, formed
the plaintiff corporation, Our Lady of Mercy School of
Madison, Inc., with the intent to form a new Catholic
school in Madison that, as alleged in the complaint,
would ‘‘[keep] the current mission and vision of OLM
intact.’’9 The plaintiffs further alleged that ‘‘[s]ince its
founding, [the plaintiff corporation] has raised over $1
million in additional pledges to augment the endowment
by [Rettich], filed for 501c (3) status,10 developed a
financial plan, identified a sponsor of independent Cath-
olic schools and developed a curriculum. Additionally,
[the plaintiff corporation] is in the process of hiring a
principal and teachers for the school.’’ (Footnote
added.)
In April, 2018, the plaintiffs initiated the underlying
action. The complaint contained seven counts and
incorporated by reference and attached a number of
exhibits.11 Count one was brought on behalf of the plain-
tiff students and alleged that Rettich’s bequest to OLM
should be viewed as an endowment that resulted in a
constructive trust benefitting the plaintiff students with
the defendant acting as trustee. It asserted that the
defendant has an equitable duty to convey the corpus
of that alleged trust to the plaintiff corporation or, alter-
natively, back to Rettich’s estate for distribution
because the defendant ‘‘would be unjustly enriched if
it were permitted to retain the endowment and dissemi-
nate it at its own discretion and for purposes wholly
unrelated to the operation and preservation of OLM or
a rightful successor.’’ Count two, also brought on behalf
of the plaintiff students, sounded in breach of fiduciary
duty premised on the defendant’s having closed OLM
and its alleged misappropriation of the ‘‘endowment’’
from Rettich. Counts three and four were brought by
the plaintiff parents and effectively tracked the first
two counts, sounding in constructive trust and breach
of fiduciary duty. Counts five and six were brought
by the plaintiff corporation and Derblom, respectively,
and, as in the prior counts, alleged the existence of a
constructive trust and an equitable duty on the part of
the defendant to convey any and all funds to the plaintiff
corporation for the intended beneficiaries or, alterna-
tively, to the estate. Finally, in count seven, Derblom
asserted on behalf of the estate ‘‘a legal and/or equitable
interest in the endowment made to OLM, by reason of
danger of loss or uncertainty’’ and sought a declaratory
judgment ‘‘determining [1] whether the endowment
shall be conveyed to [the plaintiff corporation] or some
other appropriate entity for the benefit of the [p]lain-
tiffs; [and] [2] whether the endowment to OLM has
lapsed with no clear successor and all funds shall be
returned to [Rettich’s estate] for dissemination to his
rightful heirs at law.’’
The defendant filed a motion to dismiss the action
in its entirety in July, 2018, arguing that none of the
plaintiffs had standing ‘‘to bring an action to enforce
the terms of a completed charitable gift to a school’’
and, as a result, the court was ‘‘without subject matter
jurisdiction over the claims against the defendant
. . . .’’ The defendant filed a memorandum in support
of the motion to dismiss, in which it argued that, under
Connecticut law, only the attorney general has standing
to bring an action to enforce a charitable gift made for
a stated purpose. Attached to the memorandum were
several affidavits, copies of Probate Court documents
related to the administration of Rettich’s estate, and a
copy of the check issued by the estate to OLM.
In September, 2018, the plaintiffs filed an objection
to the motion to dismiss and accompanying memoran-
dum in support of the objection. The plaintiffs argued
that the ‘‘attorney general’s lack of involvement in the
present matter is immaterial’’ because ‘‘[s]tanding is
conferred on the [plaintiff students, the plaintiff par-
ents, and the plaintiff corporation] via the special inter-
est exception,’’ citing Grabowski v. Bristol, Superior
Court, judicial district of New Britain, Docket No. CV-
XX-XXXXXXX-S (June 3, 1997) (19 Conn. L. Rptr. 623),
aff’d, 64 Conn. App. 448, 780 A.2d 953 (2001).12 With
respect to Derblom, the plaintiffs argued that she had
standing apart from the other plaintiffs because, in the
event the court were to determine that a constructive
trust in favor of the other plaintiffs failed, she would
have a real legal interest as executor of the estate to
ensure that any trust funds were returned to the estate
for redistribution to Rettich’s heirs.
The defendant filed a reply to the plaintiffs’ objection.
It argued, inter alia, that the common-law special inter-
est exception relied on by the plaintiffs was inapplicable
because it has been recognized in Connecticut only in
the context of charitable trusts, not testamentary gifts.
It also argued that, even if applicable, courts have con-
strued the exception narrowly and the plaintiffs simply
failed to establish a special interest sufficient to confer
standing. The plaintiffs filed a supplemental memoran-
dum of law rebutting the arguments of the defendant.
The motion to dismiss was argued to the court on
October 22, 2018. On February 6, 2019, the court issued
a memorandum of decision granting the defendant’s
motion to dismiss. The court concluded that the provi-
sion of Rettich’s will leaving the residue of his estate
to OLM constituted a testamentary gift and did not
create a charitable trust. It further concluded that the
exclusive power to enforce that type of gift lies with
the attorney general pursuant to our common law and
as codified in General Statutes § 3-125. It also concluded
that any special interest exception to the exclusive
power of the attorney general has been recognized and
applied only in the context of charitable trusts, not gifts,
and that enlarging the exception under the circum-
stances presented would undermine the nature of a gift,
in which a donor immediately and irrevocably transfers
and relinquishes any control over the gifted property.
Finally, and in the alternative, the court concluded that,
even if the exception applied in the present case, ‘‘the
plaintiffs have failed to demonstrate—as is their burden
in opposing a motion to dismiss—that they have a spe-
cial interest in the decedent’s residual gift sufficient to
confer standing upon them to pursue their claims.’’ This
appeal followed.
Before turning to our analysis of the plaintiffs’ claims,
we first set forth our well settled standard of review
applicable to the granting of a motion to dismiss. ‘‘A
motion to dismiss . . . properly attacks the jurisdic-
tion of the court, essentially asserting that the plaintiff
cannot as a matter of law and fact state a cause of
action that should be heard by the court. . . . A motion
to dismiss tests, inter alia, whether, on the face of the
record, the court is without jurisdiction. . . . [O]ur
review of the trial court’s ultimate legal conclusion and
resulting [decision to] grant . . . the motion to dismiss
will be de novo.’’ (Internal quotation marks omitted.)
Styslinger v. Brewster Park, LLC, 321 Conn. 312, 316,
138 A.3d 257 (2016).
‘‘The issue of standing implicates subject matter juris-
diction and is therefore a basis for granting a motion
to dismiss. . . . [I]t is the burden of the party who
seeks the exercise of jurisdiction in his favor . . .
clearly to allege facts demonstrating that he is a proper
party to invoke judicial resolution of the dispute. . . .
‘‘Standing is the legal right to set judicial machinery
in motion. One cannot rightfully invoke the jurisdiction
of the court unless he [or she] has, in an individual or
representative capacity, some real interest in the cause
of action, or a legal or equitable right, title or interest
in the subject matter of the controversy.’’ (Internal quo-
tation marks omitted.) Id. If ‘‘a party is found to lack
standing, the court is consequently without subject mat-
ter jurisdiction to determine the cause.’’ (Internal quota-
tion marks omitted.) J.E. Robert Co. v. Signature Prop-
erties, LLC, 309 Conn. 307, 318, 71 A.3d 492 (2013).
Our Supreme Court has explained that ‘‘[d]ifferent
rules and procedures will apply, depending on the state
of the record at the time the motion [to dismiss] is
filed.’’ Conboy v. State, 292 Conn. 642, 651, 974 A.2d
669 (2009). More specifically, a court may be called
on to determine whether subject matter jurisdiction is
lacking on the basis of ‘‘(1) the complaint alone; (2)
the complaint supplemented by undisputed facts evi-
denced in the record; or (3) the complaint supple-
mented by undisputed facts plus the court’s resolution
of disputed facts.’’ (Internal quotation marks omitted.)
Id. ‘‘[I]f the complaint is supplemented by undisputed
facts established by affidavits submitted in support of
the motion to dismiss . . . the trial court, in determin-
ing the jurisdictional issue, may consider these supple-
mentary undisputed facts and need not conclusively
presume the validity of the allegations of the complaint.
. . . Rather, those allegations are tempered by the light
shed on them by the [supplementary undisputed facts].
. . . If affidavits and/or other evidence submitted in
support of a defendant’s motion to dismiss conclusively
establish that jurisdiction is lacking, and the plaintiff
fails to undermine this conclusion with counteraffida-
vits . . . or other evidence, the trial court may dismiss
the action without further proceedings. . . . If, how-
ever, the defendant submits either no proof to rebut
the plaintiff’s jurisdictional allegations . . . or only evi-
dence that fails to call those allegations into question
. . . the plaintiff need not supply counteraffidavits or
other evidence to support the complaint, but may rest
on the jurisdictional allegations therein.’’ (Emphasis
omitted; internal quotation marks omitted.) Hilario’s
Truck Center, LLC v. Rinaldi, 183 Conn. App. 597, 602,
193 A.3d 683, cert. denied, 330 Conn. 925, 194 A.3d 776(2018). This case falls under the second category, in
which the facts as alleged in the complaint are supple-
mented by undisputed facts evidenced in affidavits and
other documents submitted in support of the motion
to dismiss.
I
The plaintiffs first claim that the court improperly
construed Rettich’s bequest as an absolute or outright
gift to OLM rather than as an endowment that created
or resulted in some type of charitable trust benefiting
the plaintiffs. We disagree.
‘‘The construction of a will presents a question of
law to be determined in light of facts which are found
by the trial court or are undisputed or indisputable.
. . . [If] the issue before us concerns the court’s legal
conclusion regarding the intent of [a testator] as
expressed solely in the language of [a] will, we must
decide that issue by determining, de novo, whether that
language supports the court’s conclusion. . . . Our pri-
mary objective in construing [a] will is to ascertain and
effectuate [the testator’s] intent. . . . In searching for
that intent, we look first to the precise wording
employed by the testat[or] in [the] will . . . [because]
the meaning of the words as used by the testat[or] is
the equivalent of [his] legal intention—the intention that
the law recognizes as dispositive. . . . The question is
not what [he] meant to say, but what is meant by what
[he] did say.’’ (Citations omitted; internal quotation
marks omitted.) Canaan National Bank v. Peters, 217
Conn. 330, 335–36, 586 A.2d 562 (1991); see also
Schwerin v. Ratcliffe, 335 Conn. 300, 310, 238 A.3d 1(2020) (‘‘The most inflexible rule of testamentary con-
struction and one universally recognized is that the
intention of the testator should govern the construction,
and this intention is to be sought in the language used
by the testator in the light of the circumstances sur-
rounding and known to him at the time the will was
executed. . . . In seeking the testator’s testamentary
intent, the court looks first to the will itself . . . . It
studies the will as an entirety. The quest is to determine
the meaning of what the [testator] said and not to specu-
late upon what [he] meant to say . . . .’’ (Internal quo-
tation marks omitted.)).
Before turning to the will language at issue, it is
helpful first to consider what distinguishes the giving
of an outright gift to a charity from a gift given in
trust. A charitable trust ‘‘is a fiduciary relationship with
respect to property arising as a result of a manifesta-
tion of an intention to create it, and subjecting the
person by whom the property is held to equitable duties
to deal with the property for a charitable purpose.’’
(Emphasis added.) 2 Restatement (Second), Trusts
§ 348, p. 210 (1959). A trust ‘‘requires three basic ele-
ments: (1) a trust res; (2) a fiduciary relationship
between a trustee and a beneficiary requiring the trustee
to deal with the trust res for the benefit of the benefi-
ciary; and (3) the manifestation of an intent to create
a trust.’’ Goytizolo v. Moore, 27 Conn. App. 22, 25, 604
A.2d 362 (1992).
By contrast, a gift, whether testamentary or inter
vivos, ‘‘is the transfer of property without consideration
. . . [in which] the donor [parts] with control of the
property [that] is the subject of the gift with an intent
that title shall pass immediately and irrevocably to
the donee.’’ (Emphasis added; internal quotation marks
omitted.) Parley v. Parley, 72 Conn. App. 742, 749, 807
A.2d 982 (2002). Thus, whenever someone donates to
charity without reserving any right of control or placing
limitations on the donation’s use, this constitutes a gift,
and the law will not recognize any resulting trust. See
Carl J. Herzog Foundation, Inc. v. University of
Bridgeport, 243 Conn. 1, 7–8, 699 A.2d 995 (1997); Rus-
sell v. Yale University, 54 Conn. App. 573, 578, 737 A.2d
941 (1999).
The law recognizes a distinction between a donor
who expresses an intent to make a donee a trustee and
one who intends to make an absolute gift. ‘‘In the case
of a trust, the legal title only is in the corporation,
subject to the duties imposed by the terms of the trust
instrument and by the law of charitable trusts, which
may be enforced by the [a]ttorney [g]eneral represent-
ing the public. In the case of the absolute gift full owner-
ship of the property given vests in the corporation,
subject to the duties imposed upon it by its charter or
articles of incorporation [and other legal restrictions].
The [a]ttorney [g]eneral or another public official has
the power, as a representative of the state and on behalf
of the public, to compel the corporation to perform
these duties. The authority applies to protect charitable
assets, whether held in trust or corporate form.’’
(Emphasis altered; footnotes omitted.) G. Bogert et al.,
Bogert’s The Law of Trusts and Trustees (2020) § 324.
Turning to the present case, the residuary clause of
Rettich’s will states in relevant part: ‘‘All the rest, resi-
due, and remainder of my property of every kind and
description . . . remaining after the payment of estate,
inheritance, succession, transfer and death taxes or
duties . . . I give and bequeath, in memory of Fred
H. & Rosa Rettich, to [OLM], 149 Neck Road, Madison,
Connecticut, or its successor, for its general uses and
purposes.’’ The language used is not ambiguous and
must be given its ordinary meaning. It clearly and
expressly provides that the residue of the estate is
‘‘give[n]’’ to OLM, without placing any restriction on
OLM’s use. This language reasonably can be construed
only as manifesting an intent to convey full control over
the residue of his estate to OLM as an outright gift.
Rettich did not use any qualifying language that would
suggest that he intended to give the residue only ‘‘in
trust’’ or use any other language indicative of an intent
to create a trust of any kind. Rettich placed no limit
on the expenditure of the principal. No beneficiary or
trustee is named in the will. Although it is true that
courts may recognize the formation of a testamentary
charitable trust even in the absence of precise language;
see, e.g., O’Leary v. McGuinness, 140 Conn. 80, 84, 98
A.2d 660 (1953) (will bequeathing legal title to property
to testator’s executors but giving beneficial interest to
charities to be selected by those executors created trust
despite word ‘‘trust’’ not appearing in will); courts will
not read terms into a will that are not otherwise implied
and will not recognize the formation of a trust in the
absence of some manifestation of intent to do so, which
simply does not exist in Rettich’s will. See Winchester
v. Cox, 129 Conn. 106, 111, 26 A.2d 592 (1942) (‘‘[if]
property is conveyed to a charitable corporation, simply
with the requirement that it be used for one of its author-
ized purposes, this is not in itself sufficient to establish
a trust’’); Lyme High School Assn. v. Alling, 113 Conn.
200, 204, 154 A. 439 (1931) (holding that bequest to
school containing no provision requiring that funds be
held in trust or restricting manner in which funds may
be managed or used is not trust).
The plaintiffs would have us interpret Rettich’s use
of the language ‘‘or its successor’’ in his bequest to OLM
as manifesting something more than an intent to make
an outright gift to OLM. The plaintiffs imply that those
words convey that it was Rettich’s intent that, in the
event OLM closed or otherwise ceased to exist under
its current name after the residue of the estate passed,
any unspent funds must pass to whichever school is
deemed OLM’s successor. We are not persuaded, how-
ever, by this argument. Rather, we construe the lan-
guage ‘‘or its successor’’ as only commonplace testa-
mentary verbiage intended to avoid a potential failure
of the residuary bequest in the event that OLM had
ceased to exist or changed its name before Rettich died
and before he had an opportunity to amend his will.
The language by itself, with no other indicia of any
intent to exercise future control over the residue of the
estate or to convey it in trust, does not undermine
the trial court’s construction of the residual clause as
effectuating an absolute gift to OLM.13 We agree with
the trial court’s construction of the will and reject the
plaintiffs’ claim that the court improperly failed to con-
strue Rettich’s residuary clause as anything more than
a gift.
II
Next, the plaintiffs claim that the court improperly
concluded that a common-law special interest excep-
tion to the rule that the state’s attorney general has
exclusive authority to bring an action to enforce
Rettich’s charitable gift is limited in Connecticut to
actions involving charitable trusts and, thus, was inap-
plicable to confer standing on the plaintiffs in the pres-
ent case involving a gift. We are not persuaded.
‘‘At common law, a donor who has made a completed
charitable contribution, whether as an absolute gift or
in trust, had no standing to bring an action to enforce
the terms of his or her gift or trust unless he or she had
expressly reserved the right to do so. Where property
is given to a charitable corporation and it is directed
by the terms of the gift to devote the property to a
particular one of its purposes, it is under a duty, enforce-
able at the suit of the [a]ttorney [g]eneral, to devote the
property to that purpose.’’ (Emphasis altered; footnote
omitted; internal quotation marks omitted.) Carl J. Her-
zog Foundation, Inc. v. University of Bridgeport,
supra, 243 Conn. 5–6, quoting 2 Restatement (Second),
Trusts § 348, comment (f), p. 212 (1959). ‘‘Connecticut
is among the majority of jurisdictions that have codified
this common-law rule and has entrusted the attorney
general with the responsibility and duty to represent
the public interest in the protection of any gifts, legacies
or devises intended for public or charitable purposes.
. . . General Statutes § 3-125.’’ (Internal quotation
marks omitted.) Carl J. Herzog Foundation, Inc. v.
University of Bridgeport, supra, 7 n.3.14 Section 3-125
contains no language evidencing any intent on the part
of the legislature to qualify this responsibility or to
suggest that it is a responsibility to be shared with other
interested parties.15
‘‘The theory underlying the power of the [a]ttorney
[g]eneral to enforce gifts for a stated purpose is that a
donor who attaches conditions to his gift has a right
to have his intention enforced. . . . The donor’s right,
however, is enforceable only at the instance of the
attorney general . . . .’’ (Citation omitted; emphasis
added; internal quotation marks omitted.) Id., 7. Thus,
as this court stated in Russell v. Yale University, supra,
54 Conn. App. 573, if a ‘‘donor has effectually passed
out of himself all interest in the fund devoted to a
charity, neither he nor those claiming under him have
any standing in a court of equity as to its disposition and
control.’’ (Emphasis added; internal quotation marks
omitted.) Id., 578; see also Carl J. Herzog Foundation,
Inc. v. University of Bridgeport, supra, 243 Conn. 9(‘‘a donor [has] no standing to enforce the terms of a
completed charitable gift unless the donor had
expressly reserved a property interest in the gift’’
(emphasis added)). As we have determined in part I of
this opinion, the bequest from Rettich to OLM became
a completed charitable gift when the estate gave OLM
a check for the full amount of the residue of the estate
in accordance with the final accounting and closing of
the estate. Here, the stated purpose of the gift was for
OLM’s ‘‘general uses and purposes’’ and, as we indicated
in footnote 13 of this opinion, the record is silent as to
how OLM made use of the funds prior to its closing or
whether any funds remain.
Although the plaintiffs recognize that, as a matter of
statutory and common law, standing to enforce the
terms of a completed charitable gift lies exclusively
with the attorney general, they nevertheless argue that
courts in this state have recognized a so-called ‘‘special
interest’’ exception to this general rule and claim that
the trial court improperly declined to apply that excep-
tion with respect to Rettich’s gift to OLM. We agree
with the trial court and the defendant that the exception
is inapplicable to the present case.
The special interest exception has been recognized
by Connecticut courts as an exception to the rule that
the attorney general has the sole and exclusive authority
to bring an action to protect any ‘‘gifts, legacies or
devises’’ intended for a charitable purpose.16 As noted
by the defendant and the court, however, the special
interest exception has been applied narrowly only in
cases involving charitable trusts, not charitable gifts.
See Carl J. Herzog Foundation, Inc. v. University of
Bridgeport, supra, 243 Conn. 8 n.4 (‘‘it is well estab-
lished in the context of charitable trusts that there are
others, in addition to the attorney general, who may
enforce the terms of a trust’’ (emphasis added)). In
fact, in urging us that the exception applies to the facts
of this case, the plaintiffs have cited no case law or
treatise discussing standing to enforce the terms of a
completed testamentary gift without restrictions, such
as the one at issue in the present case. The principal
case relied on by the plaintiffs is the trial court’s deci-
sion in Grabowski v. Bristol, 64 Conn. App. 448, 449, 780
A.2d 953 (2001), which itself involved ‘‘a testamentary
charitable trust that conveyed a designated parcel of
property to the city of Bristol.’’17 (Emphasis added.) As
the trial court noted in its decision in the present case,
the appellate case law discussed by the trial court in
Grabowski also involved issues related to charitable
trusts, not gifts. See, e.g., Steenek v. University of
Bridgeport, 235 Conn. 572, 586–88, 668 A.2d 688 (1995)
(declining to extend principles of trust law applicable
to charitable trusts to charitable corporations and nar-
rowly construing special interest exception); Belcher v.
Conway, 179 Conn. 198, 204, 206–209, 425 A.2d. 1254
(1979) (discussing rights of minority trustees, admitted
as party plaintiffs, to counsel of their choice in action
concerning application of doctrine of cy pres or approx-
imation with respect to testamentary charitable trust).
In the absence of any controlling authority in this state
recognizing the application of the special interest
exception to completed gifts, the trial court declined
‘‘to enlarge the scope of the exception as it has been
discussed by our courts.’’ The trial court indicated that
expansion of the exception in order to confer standing
beyond the attorney general would be unwise. We agree
with the trial court’s reasoning.
First, as we already have discussed, there is a signifi-
cant legal distinction, relevant to our consideration of
the issue of standing, between a charitable trust and a
gift. When a donor completes a gift, he gives up all
control over the donated property, which is irrevocably
transferred to the donee. Parley v. Parley, supra, 72
Conn. App. 749. He no longer has any legal interest in
the completed gift. Thus, as stated by the trial court,
‘‘[c]onferring standing on the plaintiffs to pursue claims
for constructive trust, breach of fiduciary duty, and a
declaratory judgment would be wholly inconsistent
with the characteristics of a gift.’’
Second, the plaintiffs have provided us with no legal
authority supporting their assertion that the special
interest exception should be expanded to include
actions by third parties regarding completed charitable
gifts like the bequest from Rettich to OLM. They devote
only a single paragraph to this issue in their appellate
brief. Our own research shows that courts in other
jurisdictions have reached different conclusions regard-
ing the scope of the special interest exception in cases
in which a donor had retained some express legal right
over a charitable gift or had expressed a clear intent
to restrict the use of the gift to a specific purpose.
Compare, e.g., Hardt v. Vitae Foundation, Inc., 302
S.W.3d 133, 139–40 (Mo. App. 2009) (declining to
expand common-law special interest exception in
action by donor to enforce restrictions on charitable
gift in absence of showing that attorney general lacked
ability to represent donor’s interest), with Smithers v.
St. Luke’s–Roosevelt Hospital Center, 281 App. Div. 2d
127, 140–41, 723 N.Y.S.2d 426 (2001) (holding wife of
deceased donor of charitable gift to hospital, which
gift was subject to numerous restrictions agreed to by
hospital, had concurrent standing with attorney general
to enforce restrictions). The plaintiffs, however, have
not cited or relied on these or any other out-of-state
authority to support their argument, and we are disin-
clined to enter into any discussion of the relative merits
or persuasiveness of those authorities at this time
because, in our view, they are distinguishable from the
matter before us, which does not involve a gift encum-
bered by any cognizable intent on behalf of the donor
to retain any legal interest in the donation or to place
any specific restrictions on the use of the gift. The gift to
OLM was outright for its ‘‘general uses and purposes.’’
The plaintiffs have provided no compelling argument
as to why, under the present circumstances, we should
abandon the well established and legislatively adopted
general rule that the attorney general has the exclusive
power to enforce Rettich’s testamentary gift to the
extent it is necessary to vindicate the interests of the
plaintiffs and of the general public. Because the plain-
tiffs lacked standing, we conclude that the court prop-
erly granted the defendant’s motion to dismiss.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court at the
date of oral argument.
1
Derblom is the sister-in-law of Fred H. Rettich, the decedent.
2
The minor student plaintiffs are Luke Ciocca, John Ciocca, Julia Coric,
Amanda Coric, Vladimir Coric III, Mia Lombardi, Thomas Piagentini, Jack
Piagentini, Kathryn Piagentini, Julianna Picard, and Alessandra Picard. The
parent plaintiffs are Stephen Ciocca, Jacqueline Ciocca, Vladimir Coric, Ann
Coric, Tom Lombardi, Roberta Lombardi, Joe Piagentini, Kelly Piagentini,
John Picard, and Tara Picard.
3
The complaint names the defendant as the ‘‘Archdiocese of Hartford
a/k/a Hartford Roman Catholic Diocesan Corporation.’’
4
The plaintiffs also claim that the court improperly determined that (1)
even if the special interest exception applied in the present case, the school
currently operated by the plaintiff corporation is not the successor school
to OLM and (2) the plaintiffs failed to demonstrate any other basis on which
to assert a special interest necessary to confer standing to bring this action.
Because we agree with the trial court that the special interest exception
recognized under Connecticut common law does not apply under the circum-
stances of the present case, we do not reach these additional claims of error.
The plaintiffs also argue that Derblom, in her capacity as representative
of the estate, had standing apart from the remaining plaintiffs because, in
the event the plaintiffs demonstrated that Rettich’s bequest resulted in a
constructive trust and that trust subsequently were deemed to have failed,
the bequest would need to be returned to the estate for distribution to the
decedent’s heirs. Because we agree with the court and the defendant that
Rettich’s bequest properly is construed as a completed absolute gift and
never resulted in any actual or constructive trust, we do not reach the merits
of this additional argument.
5
A residuary clause disposes of any remaining estate property after all
other specific bequests, devises and obligations of the estate are satisfied.
See Warner v. Merchants Bank & Trust Co., 2 Conn. App. 729, 732, 483
A.2d 1107 (1984). The clause in Rettich’s will provided: ‘‘All the rest, residue,
and remainder of my property of every kind and description, real, personal
and mixed, whatever situated (all of which is hereinafter referred to as
‘[r]esidue’), remaining after the payment of estate, inheritance, succession,
transfer and death taxes or duties, in accordance with Article VII hereof
(but excluding any property over which I may have a power of appointment
at my death), I give and bequeath, in memory of Fred H. & Rosa Rettich,
to [OLM], 149 Neck Road, Madison, Connecticut, or its successor, for its
general uses and purposes.’’
6
Throughout their briefs and at oral argument before this court, the
plaintiffs refer to Rettich’s bequest to OLM as an ‘‘endowment.’’ An endow-
ment is defined as ‘‘[a] gift of money or property to an institution (such as
a university) for a specific purpose, esp. one whose principal is kept intact
indefinitely and only the interest income from that principal is used.’’
(Emphasis added.) Black’s Law Dictionary (11th Ed. 2019) p. 668. As we
discuss in part I of this opinion, Rettich’s residuary bequest to OLM ‘‘for
its general uses and purposes’’ contains no other language suggesting that
Rettich intended to limit OLM’s use of the funds to any specific purpose or
that he intended to restrict OLM’s use to only interest income or some
other limited portion of the total bequest. The plaintiffs’ use of the term
‘‘endowment’’ in referring to Rettich’s bequest is thus unsupported by any
evidence in the record. To the extent that we use that term in setting forth
the plaintiffs’ arguments, our use should not be misconstrued as adopting
the plaintiffs’ characterization.
7
Payment was by check dated July 8, 2015, and made payable to OLM.
According to the complaint, those funds have ‘‘come under the possession
and/or control of the [d]efendant . . . .’’ In an affidavit submitted by the
defendant with its motion to dismiss, the Reverend Daniel McLearen, a
diocesan priest serving at one of the two local parishes in Madison and
Guilford that ‘‘jointly-sponsored’’ OLM, averred that the funds from Rettich’s
estate ‘‘were deposited in an account established by [the two parishes] in the
name of [OLM]’’ and that McLearen is ‘‘the sole signatory on that account.’’
It is unnecessary for purposes of this appeal for us to resolve any ambiguity
in the record concerning what portion, if any, of Rettich’s bequest remains
under deposit or whether McLearen’s affidavit created any dispute over who
had legal control of the funds deposited by McLearen because those facts
have no bearing on our resolution of the standing issue before us.
8
As explained by the trial court, ‘‘[d]espite drawing students from sur-
rounding towns, enrollment at OLM declined precipitously from 2013 to
2018, from 228 to 140, a decrease of 39 [percent]. . . . OLM was also facing
other challenges. OLM was located on property that was leased to OLM and
in 2016, OLM was informed that the lease would not be extended beyond
the 2017–2018 academic year. . . . Although OLM attempted to purchase
the property or obtain a long-term lease, these efforts were unsuccessful,’’
ultimately leading to the decision of the governing parishes to close and
consolidate schools. (Citations omitted.)
9
The record indicates that the plaintiff corporation has founded a new
private school in Madison named Our Lady of Mercy Preparatory Academy.
The plaintiff corporation asserts that that this new school is an ‘‘independent
Catholic’’ school. The defendant disputes this characterization. In a letter
from the Archbishop of Hartford to the First Selectman of Madison, the
archbishop, citing canon law, explained that ‘‘no school may bear the title
Catholic school without the consent of the competent ecclesiastical author-
ity,’’ that he, as that authority, had not consented to a new Catholic school
in the area in question, and that, ‘‘[t]herefore, any new OLM school is not,
and should not present itself, as a Catholic school.’’ (Internal quotation
marks omitted.) A copy of the letter was appended as an exhibit to the
defendant’s reply to the plaintiffs’ opposition to the motion to dismiss. This
issue is not before us on appeal.
10
Section 501 (c) (3) of title 26 of the United States Code is the provision
of the Internal Revenue Code that allows for federal tax exemption for
certain nonprofit organizations. Donors who make charitable contributions
to § 501 (c) (3) organizations may also be entitled to a deduction for federal
income tax purposes. See 26 U.S.C. § 170 (2018).
11
Specifically, the following exhibits were attached to the complaint: (1)
a copy of Rettich’s will; (2) an affidavit from Derblom; (3) two letters from
OLM to Rettich discussing the donation he made to OLM prior to his death;
(4) a press release by the defendant about ESCA; (5) a document entitled
‘‘FAQs About [ESCA]’’; and (6) a certificate of incorporation and bylaws for
the plaintiff corporation.
12
Attached as exhibits to the plaintiffs’ memorandum in opposition were,
inter alia, an affidavit from one of the plaintiffs’ attorneys indicating that
he had contacted the Office of the Attorney General by letter and formally
requested that the attorney general join in bringing the present action.
According to counsel, no action was taken on that request and the plaintiffs
elected to file the action without the participation of the attorney general.
13
Although strongly contested by the parties throughout these proceed-
ings; see footnote 9 of this opinion; it is unnecessary for the purposes of
our analysis to resolve, either as a matter of law or by divining Rettich’s
intent, whether ESCA or Our Lady of Mercy Preparatory Academy should
be deemed a successor school to OLM. Such a designation is rendered
irrelevant on the basis of our determination that Rettich’s bequest of the
residue of his estate to OLM was an absolute gift, completed upon the
delivery of the check from his estate to OLM. Upon completion of the gift,
title to those funds became absolute in OLM, and neither Rettich nor his
estate retained any legal interest in what happened to those funds in the
event of OLM’s demise. Even if this were not true, the record contains no
evidence or accounting of how OLM made use of the funds prior to closing
or whether any funds remain and, if so, how much.
14
General Statutes § 3-125, which sets forth the duties of our attorney
general, provides in relevant part that the attorney general ‘‘shall represent
the public interest in the protection of any gifts, legacies or devises intended
for public or charitable purposes. . . .’’
15
‘‘When construing a statute, [o]ur fundamental objective is to ascertain
and give effect to the apparent intent of the legislature. . . . In seeking to
determine that meaning, General Statutes § 1-2z 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 imple-
ment, and to its relationship to existing legislation and common law princi-
ples governing the same general subject matter . . . .’’ (Internal quotation
marks omitted.) State v. O’Bryan, 318 Conn. 621, 636, 123 A.3d 398 (2015).
16
Although not defined in § 3-125, ‘‘charitable purpose’’ is defined else-
where in our statutes as ‘‘the relief of poverty, the advancement of education
or religion, the promotion of health, the promotion of governmental purposes
and any other purpose the achievement of which is beneficial to the commu-
nity’’; (emphasis added) General Statutes § 45a-535a (1); and as ‘‘any benevo-
lent, educational, philanthropic, humane, scientific, patriotic, social welfare
or advocacy, public health, environmental conservation, civic or eleemosy-
nary objective.’’ (Emphasis added.) General Statutes § 21a-190a (4). Under
either definition, Rettich’s gift to OLM was for a charitable purpose.
17
Although standing was not raised as an issue on appeal in Grabowski,
this court briefly addressed the issue sua sponte indicating that the trial
court had correctly determined that ‘‘the plaintiffs’ complaint demonstrated
that the plaintiffs had a special interest in Peck Park because, unlike mem-
bers of the general public, their property adjoined Peck Park.’’ Grabowski
v. Bristol, supra, 64 Conn. App. 451. This court’s opinion contained no
discussion of the scope of the special interest exception outside of enforce-
ment of a charitable trust.