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Nobert v. Nobert

Superior Court of Rhode Island

February 10, 2015


For Plaintiff: Samuel D. Zurier, Esq.

For Defendant: Steven T. Hartford, Esq.



This matter comes before this Court, sitting without a jury, on a de novo appeal from a June 13, 2008 decision of the Westerly Probate Court. Appellant herein is Diana Nobert (Diana[1] or Appellant), in her capacity as the Executrix of the Estate of Sally Nobert (Sally), following Sally's death during the pendency of this probate appeal. Sally had appealed to this Court from the decision issued by the Westerly Probate Court in the administration of the estate of her late husband, Norman S. Nobert, Jr. (Nobby), for which Sally had served as Executrix of Nobby's estate (the Estate). The decision on appeal imposed a constructive trust in favor of Nobby's two siblings, Mark S. Nobert (Mark) and Dianne Manfredi (Dianne, and collectively, Claimants or Appellees).

Jurisdiction is pursuant to G.L. 1956 §§ 33-23-1, et seq. For the reasons set forth herein, judgment shall enter for Claimants.

I Findings of Fact

Having reviewed the evidence presented by both parties, this Court makes the following findings of fact.

The focus of this probate appeal is certain real estate located at 35 Breach Drive in Westerly (the Cottage). Normand S. Nobert, Sr. (Dewey) and Elaine Nobert (Elaine) purchased the Cottage in or about 1961. Dewey and Elaine were married and had three children, Nobby, Mark and Dianne. Dewey and Elaine raised their family in Meriden, Connecticut and used the Cottage on weekends and during the summers. Dewey and Elaine's three children also used the Cottage from 1961 through 1986.

Nobby and Sally married in 1961 and had two children, Diana and Wendy. At all relevant times, Nobby and Sally lived in Haddam, Connecticut, with the exception of one year in which they resided full-time at the Cottage.

Dianne married Joseph Manfredi in or around 1968 and retained that surname after her divorce. Dianne had four sons, Michael Roberts, Keith Roberts (Keith), Kyle Roberts (Kyle) and Paul Rocca (Paul). Keith died in 1983 as a result of a motorcycle accident. Paul died in 1996.

Mark never married and has no children. Mark had significant legal problems originating with an arrest on August 19, 1985, on a charge of risk of injury to a minor, to which he pled nolo contendere on December 18, 1985, and received an eighteen-month suspended sentence and three years' probation. Mark lived with his parents in Meriden at the time of his arrest and plea, and for a period of time thereafter.

It was during the time that Mark faced those criminal charges, in approximately the fall of 1985, that a discussion took place concerning the transfer in the title to the Cottage. This discussion took place at Dewey and Elaine's house in Meriden. The only credible evidence of the substance of that discussion was offered by Mark, the only living person who was present at that meeting.[2] Mark suggested that his parents place the Cottage in Nobby's name in order to protect it from creditors should Dewey and/or Elaine fall ill so that it could remain in the family for the family to use. Mark further suggested that his own name should not be on the deed to the Cottage because of his pending legal troubles. Additionally, it was discussed that Dianne's name should also not be on the deed due to the emotionally fragile state she was in following the passing of one of her sons and because of the rough lifestyle that her sons led. Mark explained to his parents that by placing the Cottage in Nobby's name, Dewey and Elaine could continue to use it as they had been and that it could either be sold by Nobby in the event that they needed money or passed on to the three siblings. According to Mark, Nobby was trustworthy and it was the "safest place" to put the Cottage, in his name exclusively, and leave it to Nobby's discretion when it should be sold. Dewey and Elaine reacted favorably to Mark's suggestion in light of their desire to pass the Cottage onto their children. There was no evidence presented that Dewey and Elaine intended to gift the Cottage to Nobby or that anyone else considered it to be such a gift.

Several months after that discussion in Meriden, Dewey and Elaine engaged the services of Richard Panciera, Esq., who prepared a Warranty Deed (the Deed) conveying Dewey and Elaine's interest in the Cottage to Nobby. The Deed was executed on April 11, 1986 and recorded on the same day. Although Nobby did not pay Dewey and Elaine for their interest in the Cottage, the tax stamps on the Deed were $165.00, which corresponded to $75, 000 in consideration for the transfer of the Cottage.

After the transfer to Nobby in 1986, Dewey and Elaine continued to use the Cottage in much the same way as they had under their ownership. Nobby and Sally continued to use the Cottage and began to expend funds to repair and replace items as needed. No one else contributed to the expenses of maintaining the Cottage, nor did Nobby share in any rental income derived from the Cottage. Mark used the Cottage several times until he moved to New York in 1988, a six hour drive. Dianne's son, Kyle, regularly visited the Cottage and maintained a close relationship with his grandparents, Dewey and Elaine, and with his uncle and aunt, Nobby and Sally. Kyle also brought his own family to the Cottage and considered it a great place for the entire family to spend time together. From time to time during Kyle's visits with his grandparents, Dewey mentioned to Kyle that Nobby was the owner of the Cottage and that he should be consulted if there were questions about the maintenance or the use of the property.

A month or two after the conveyance, Dianne discovered that her parents had transferred ownership in the Cottage to Nobby and that she had been left out of the family discussion. Dianne learned of the conveyance through a neighbor, who stated that the transaction appeared in the newspaper. Nobby was called to the Cottage where Dianne was found to be upset from the news. Nobby and Dianne took a boat ride together, during which time he explained what had transpired. According to Dianne, Nobby said the Cottage was placed in his name to protect it in the event their parents became ill, that it would still be used as it always was, and that Dianne would get one-third of her share of their parents' estate. Dianne expressed relief over Nobby's explanation, but nonetheless remained upset that she had not been advised in advance. Dianne thereafter stopped using the Cottage and her relationship with Nobby became strained.

Elaine passed away in April 1996, at the age of eighty. At that time, Dewey was suffering from cancer. Sally served as Dewey's primary caregiver after Elaine's death. Although his Meriden house remained in his name, Dewey moved in with Nobby and Sally. In September 1996, Dianne and her boyfriend, David Lowe (Lowe), visited Dewey at Nobby's house. Dianne and Lowe drove Dewey to the cemetery to visit Elaine's grave and to check on his house in Meriden. On the drive, Dewey told Dianne that she should not worry about the Cottage because Nobby was taking care of it and that if Nobby ever decided to sell it, Dianne and Mark would both receive their fair share of its value. Dianne visited Dewey again in November 1996, at Nobby's house, during which visit Dewey asked to speak to Dianne privately. At that time, Dewey told her that he wanted his estate to be split equally between Dianne and her two brothers, and he reiterated the same comments about the Cottage as he and Nobby had made to Dianne previously; namely, that when Nobby was ready to sell the Cottage, she would get a one-third share of its value, as would Mark and Nobby. Dewey passed away in December 1996.

Dewey's Last Will and Testament named Nobby as the Executor of his estate and left his estate to his three children in equal shares. Dewey's estate included the family home in Meriden. Nobby duly divided Dewey's estate among the three siblings without issue. The Cottage remained in Nobby's name and was not distributed as part of Dewey's estate.

Prior to their death, Dewey and Elaine never forced or requested Nobby to sell the Cottage. After his parents' deaths in 1996, Nobby and Sally continued to maintain and improve the Cottage and use it on weekends and in the summer. Included in the work performed by Nobby was installing an enclosed porch, upgrading the heating system to include radiant heat, renovating a bathroom, improving bedrooms and a hallway, and installing new lighting fixtures. Nobby also did the landscaping and purchased new kitchen appliances. Mark rarely used the Cottage but frequently checked with Nobby about what would happen if it was sold; Dianne did not use the Cottage at all and continued to be estranged from Nobby and Sally. Neither Mark nor Dianne contributed to the expenses nor paid real estate taxes on the Cottage. Similarly, Nobby did not share any rental income with his siblings. Nobby did, however, keep records of income and expenses associated with the Cottage from 1989 until May 2005.

In or about December 2001, Dianne sent Nobby a Christmas card in which she hand wrote what appears to be an expression of how she intended to structure her will. She expressly stated to Nobby: "To our concern: . . . Kyle who loves the ocean and friends (sic) from Weekapaug RI will be willed my promised 1/3rd of the cottage on Breach Drive thenced (sic) to my grandson Keith." Joint Ex. 5. Nobby did not respond. Several years later, in or about 2003 or 2004, while Dianne was visiting her son Kyle in Maine, Nobby telephoned and Nobby and Dianne had a chance to speak. During that telephone conversation, Nobby mentioned that he was getting close to selling the Cottage and that she would be getting her one-third share.

For some time after his parents passed away in 1996, Sally pressed Nobby to put her name on the deed; each time Nobby refused. Sally initiated one such conversation with Nobby after she heard from a friend that Mark claimed to be a one-third owner of the Cottage. Nobby responded to Sally that if he ever sold the Cottage, he would make sure to give Mark and Dianne their fair share. Sometime in or around 2003, Nobby made comments to Sally that he was considering selling the Cottage, but she asked him not to. Nobby did not go through with his plan to sell and instead, at Sally's request, allowed her the opportunity to try to turn it around and make it more profitable to own and maintain.

In 2004 and 2005, Mark experienced further legal problems that caused an immediate need for financial support for mounting legal fees. Initially, Mark asked Nobby for help, but Nobby told him he could not give him financial assistance. Mark turned to his longtime friend, Gerald Randall (Randall), and requested a loan. Randall hired an attorney without hesitation and gave Mark some cash for support in the meantime. Soon after Randall hired a lawyer, Nobby and Sally travelled to New York to talk to Mark; Mark, in turn, asked Randall to come to his house and meet his brother and sister-in-law. At first, the conversation focused on Nobby and Randall talking to Mark about his legal situation, trying to calm him down because he was very upset. Nobby and Randall moved the conversation outside, at which point Nobby brought up the issue of finances, apologizing for not being able to support Mark. Nobby indicated to Randall that there was a piece of property in which Mark had a one-third interest, and stated that if Mark continued to need more money for legal fees, money might be available from the property. Randall and Nobby had several other conversations after that initial meeting, most of which included Randall's update to Nobby on the status of Mark's legal issues and emotional stability. During these conversations, Nobby continually apologized to Randall for not providing Mark with any financial support. Additionally, Nobby stated to Randall during some of these conversations that Mark had an expectancy interest in the Cottage that would be realized upon its sale within a couple of years.

At all times material hereto, Mark believed the Cottage was entrusted to Nobby by their parents and it would be for Nobby to decide if and when the Cottage would be sold. Dianne similarly so believed, as she was assured by Nobby on multiple occasions not to worry about the Cottage. Both Mark and Dianne had been told-and believed- that they would each receive a one-third share of the Cottage. Unfortunately, before Nobby ever decided to sell, he died in 2005. Nobby's Estate, including his interest in the Cottage, was left entirely to his wife, Sally.

Tensions continued between Claimants and Sally after Nobby's death. Dianne refused to attend Nobby's funeral, claiming that she had been to too many funerals in the last several years, including both her parents and two of her sons, and she was not emotionally prepared to also attend her brother's funeral. However, after the funeral, Dianne attempted to contact Sally to request that they meet. When Sally returned Dianne's call, she declined to meet but inquired into Dianne's purpose for meeting. Dianne asked if Sally intended to sell the Cottage and keep Nobby's promise to Dewey to give Mark and Dianne their fair share. Sally informed Dianne that she was not going to sell the Cottage.

During the probate of Nobby's Estate in Westerly Probate Court, Mark and Dianne each claimed a one-third ownership in the Cottage, on which they were successful. Sally, as executor of Nobby's Estate, appealed to this Court. Sally has subsequently died and her ...

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