Brousseau v. Brousseau

Brousseau v. Brousseau (2006-142)

2007 VT 77

[Filed 29-May-2007]      

                                 ENTRY ORDER

                                 2007 VT 77

                      SUPREME COURT DOCKET NO. 2006-142

                            SEPTEMBER TERM, 2006


  Joyce J. Brousseau                   }         APPEALED FROM:
                                       }
      v.                               }
                                       }         Addison Superior Court
                                       }
  Heidi D. Brousseau                   }
                                       }         DOCKET NO. 2525-11-05 Ancv

                                                 Trial Judge: Matthew I. Katz

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

       ¶  1.  Mother appeals a superior court decision granting daughter
  summary judgment and  thereby entitling her to one half of the proceeds
  from the sale of mother's property as joint tenant.  We reverse the summary
  judgment order and remand for further proceedings.

       ¶  2.  Mother acquired her interest in the property at issue in 1965
  when it was deeded to mother, mother's mother, and mother's father as joint
  tenants with rights of survivorship.  Mother's parents purchased the
  property for their own use, but included mother as a joint tenant on the
  deed solely for estate planning purposes-to avoid probate upon their
  deaths.  In 1980, mother moved to the property to care for her elderly
  parents.  Mother's father died in September of 1983.  In March 1984, while
  mother's mother was still alive, mother signed a deed purporting to convey
  title to the property to herself and daughter as joint tenants with rights
  of survivorship.  Mother claims that it was not intended as a gift, and
  that both parties understood that the deed was an estate planning tool. 
  Mother's mother died three months after the 1984 deed was signed. 

       ¶  3.  Mother currently lives at an assisted-living facility.  In
  2005, mother decided to sell the property to help her meet the monthly
  expenses for the facility.  Daughter allegedly refused to quitclaim her
  interest in the property to mother or to permit mother to receive the
  entire proceeds from the sale of the property.  Prospective buyers of the
  property later informed mother of a title defect in the 1984 deed; it did
  not include mother's mother who was still living at the time the deed was
  executed.  Mother then petitioned the probate court to adjudge her interest
  in the property, and in December 2005, the court determined that mother
  "possessed . . . an existing enforceable title" and had the right to convey
  the property free of any claims.  
   
       ¶  4.  In November 2005, mother petitioned the superior court to: 1)
  declare that mother is the sole legal and equitable owner of the property;
  2) order daughter to comply with the sale of the property; 3) declare that
  mother is entitled to all proceeds from the sale of the property; and 4)
  enjoin daughter from making any claims against the proceeds of the sale. 
  Daughter filed a motion for summary judgment.  The superior court granted
  the motion, concluding that mother's "voluntary act in titling the property
  in both her and her daughter's names, as joint tenants with rights of
  survivorship" conclusively demonstrated her intent to make an inter vivos
  gift of a one-half interest in the property.  This appeal followed.

       ¶  5.  We review a grant of summary judgment using the same standard
  as the trial court.  Mellin v. Flood Brook Union Sch. Dist., 173 Vt. 202,
  211, 790 A.2d 408, 417 (2001).  "[S]ummary judgment is appropriate only
  when the record clearly shows that there is no genuine issue of material
  fact and that the movant is entitled to judgment as a matter of law." 
  Bacon v. Lascelles, 165 Vt. 214, 218, 678 A.2d 902, 905 (1996).  In
  determining whether any genuine issue of material fact exists, we give the
  non-moving party the benefit of all reasonable doubts and inferences. 
  Mellin, 173 Vt. at 211, 790 A.2d  at 417.   

       ¶  6.  In Vermont, there are two essential elements of an inter
  vivos gift: (1) donative intent and (2) delivery.  Tyree v. Oritz, 127 Vt.
  177, 184-85, 243 A.2d 774, 778-79 (1968).  Any interest in the property
  claimed by daughter in this case was created by mother's act of gifting it
  to her, and therefore, the strength of mother's and daughter's respective
  interests in the property must be determined by an analysis of the facts
  supporting the establishment of these two elements.  See  Stephan v. Lynch,
  136 Vt. 226, 229, 388 A.2d 376, 378 (1978) (finding that son failed to
  prove inter vivos gift despite title in joint tenancy); see also In re
  Schlacter's Will, 34 A.2d 1093 (N.Y. App. Div. 1970) (applying law of inter
  vivos gifts where mother conveyed one-half interest in property to son). 

       ¶  7.  In defining donative intent in this context, courts have
  traditionally taken one of two approaches.  The first approach treats
  donative intent as the intent to transfer legal title, established by the
  mere act of placing property into joint title without receiving
  consideration in return.  1 B. Turner, Equitable Distribution of Property §
  5:44, at 483-85, 488-89 (3d ed. 2006) (discussing the "legal title
  approach" to donative intent and collecting cases from jurisdictions
  following this approach).  The second approach, and the one favored by this
  Court, construes donative intent as the intent to confer immediate,
  beneficial ownership in the property at issue such that the mere joint
  titling of property without consideration does not conclusively establish
  intent to gift the property.  Id. (discussing "beneficial interest
  approach" to donative intent and collecting cases from jurisdictions
  following this approach); see also, e.g., Stephan, 136 Vt. at 229-30, 388 A.2d  at 378 (finding no donative intent where mother added son to deed as
  joint tenant for estate planning purposes only); Mizzi v. Mizzi, 2005 VT
  120, ¶ 6, 179 Vt. 555, 889 A.2d 753 (mem.) (holding that properties
  jointly titled in wife's name were not marital property where wife's mother
  placed her name on the deeds only to avoid probate and retained "full
  authority to maintain, sell, lease or otherwise dispose of the properties
  as she saw fit").  The presence or absence of donative intent is ultimately
  an issue to be determined by the trier of fact.  Wills v. Whitlock, 139 S.W.3d 643, 654 (Mo. Ct. App. 2004).
             
       ¶  8.  Here, by granting summary judgment for daughter, the trial
  court ignored mother's attestation that she did not intend to convey a
  present beneficial interest to daughter by signing the 1984 deed, and that
  daughter was aware that the property was titled to her as joint tenant in
  an effort to avoid probate if mother still owned the house at the time of
  her death. (FN1)  The court relied on  Foucher v. First Vermont Bank &
  Trust Co., a federal district court case, to determine that the mere act of
  titling the property in daughter's name as a joint tenant was legally
  sufficient to establish the intent and delivery required for an inter vivos
  gift.  821 F. Supp. 916, 923 (D. Vt. 1993).  In Foucher, the court held
  that "intent to create a present interest in the donee" can be presumed
  where the grantor "titl[es] the [property] in both names as joint tenants
  with right of survivorship."  Id.  It went on to state that "the law
  presumes acceptance when a gift is unaccompanied by any condition," thereby
  fulfilling the element of delivery.  Id.  Here, by deciding that daughter
  was entitled to judgment as a matter of law, despite mother's repeated
  claims on the record that she did not intend to make a present gift of the
  property to daughter, the trial court effectively created a conclusive
  presumption that title alone establishes an inter vivos gift.  We disagree
  with the trial court's position given our precedent on the issue.
                   
       ¶  9.  The trial court was mistaken in its reliance on Foucher,
  whose facts are easily distinguished from the present case.  In Foucher, a
  father and daughter jointly owned several investment accounts.  Id. at 920. 
  Before his death, the father fraudulently transferred the funds into a bank
  account solely in his name by forging his daughter's signature.  Id. at
  920-22.  After the father's death, the daughter sued the bank for wrongful
  conversion of her assets held in joint tenancy.  Id. at 919.  In its
  defense, the bank-a third party to the joint tenancy-argued that the father
  had contributed the funds used to purchase the joint assets and that the
  daughter could not prove that her father manifested an intent to grant her
  a present interest.  Id. at 923.  Because the father was deceased and could
  not speak to his intent to gift the property, the court looked to the only
  evidence it had to determine his intent-the voluntary act of titling the
  accounts jointly in his daughter's name.  See id.

        
       ¶  10.  Here, in contrast, the dispute involves only the original
  parties to the joint tenancy, both of whom are still alive.  Thus, our
  decision in Stephan is directly on point.  In Stephan, a son convinced his
  mother to put her home in their joint names to avoid having to go through
  probate court in the event of her death.  136 Vt. at 227, 388 A.2d  at 377. 
  The son later moved into the home with his family, claiming that he had an
  equal interest in the property on the basis of his joint ownership.  Id. 
  We held that the law of inter vivos gifts applied and found that the son
  had no present interest in the home because his mother did not intend to
  gift the property to him and he was well aware of it.  Id. at 230, 388 A.2d 
  at 378.  We pointed out then, as now, that the case involved "no
  intervening third party equities, nor ha[d] the situation been altered by
  the death of either of" the parties-unlike many cases in which courts make
  inter vivos gift determinations involving real property.  Id. at 229, 388 A.2d  at 378.

       ¶  11.  The facts of this case are strikingly similar to those in
  Stephan.  Here, mother claimed in her affidavit that she "did not intend to
  gift [her] home" to daughter by titling it in their joint names and that
  daughter at all times "understood that the house was always [mother's] and
  [mother] could do anything [she] wanted with [the] home."  While daughter
  contested this allegation in her answer with a one-word denial, she filed
  no affidavit in support of her version of the facts and therefore, the only
  facts on the record regarding mother's intent when deeding the property
  were those provided by mother's pleadings.  Considering our precedent in
  Stephan, and giving mother the benefit of all reasonable doubts and
  inferences, we cannot say that there is "no genuine issue of material fact"
  or that judgment in favor of daughter is required as a matter of law.

       ¶  12.  Our holding today does nothing to undermine the general
  presumption that the act of titling property in another's name establishes
  intent to convey a present interest in the property.  Phillips v.
  Plastridge, 107 Vt. 267, 269-270, 179 A. 157, 158 (1935) (voluntary act of
  titling creates inference of donative intent and delivery); In re Estate of
  Adams, 155 Vt. 517, 521, 587 A.2d 958,  961 (1990) (decedent's act of
  establishing accounts as absolute joint accounts created presumption of
  intent to so establish them).  In this limited situation, however, where
  the grantor contends that it was not her intention to gift the property by
  titling it in joint tenancy, summary judgment is inappropriate and the
  trial court must consider the grantor's rebuttal evidence on the issue of
  intent.  See Wills, 139 S.W.3d  at 653-54 (summary judgment not appropriate
  where there was ample evidence that conveyance of property was not intended
  as inter vivos gift); see also Cole v. Cole, 920 S.W.2d 32, 35 (1996)
  (joint title gift presumption rebutted by evidence that wife put separate
  property into joint title so husband would get property upon her death);
  Meyers v. Weems, 876 P.2d 861, 864 (Or. Ct. App. 1994) (mother's testimony
  that "she did not intend to give defendant a present interest in the
  property at the time that the deed was executed and recorded" rebutted the
  presumption that the property transfer was a gift).  Whether that evidence
  is credible will ultimately be determined by the court.
      
       ¶  13.  Because we find that the trial court erred in granting
  summary judgment to daughter, we do not reach the issue of daughter's
  precise interest in the property-if any-given the title defect at the time
  of the 1984 deed.  Rather, we reverse and remand so that the trial court
  may decide these issues after consideration of the evidence presented by
  the parties.

       Reversed and remanded for further proceedings consistent with this
  opinion.


------------------------------------------------------------------------------
                                 Dissenting

       ¶  14.  DOOLEY, J., dissenting.  Although the majority's response to
  mother's claim to the value of the property in order to pay for assisted
  living is understandable, the undesirable precedent it establishes is far
  too high a price to pay for the result.  Contrary to the majority's
  assertion, its reasoning and result are not controlled by an earlier
  decision of this Court.  Accordingly, I dissent.
   
       ¶  15.   Mother asks us to hold that otherwise valid record title to
  real estate is subject to a grantor's unexpressed intent to avoid the
  consequences of transferring property later by purporting to transfer it
  now.  In endorsing this result, the majority subverts record title to
  post-hoc, self-serving testimony of intent.  It also gives the desire to
  "avoid probate" a special status that allows a property owner to create a
  fictitious record title interest, revocable whenever the property owner
  desires for any reason or no reason.  

       ¶  16.  The linchpin of the majority's rationale is that a conveyance
  made in contemplation of "estate planning"-specifically a desire to "avoid
  probate"-does not show donative intent and in fact rebuts the legal
  presumption in favor of a gift.  This is a bad rule, and one we should
  categorically reject.  We should instead follow the substantial authority
  from other jurisdictions that evidence that a record transfer of real
  property was intended to become effective only on the death of the
  transferor, in order to avoid probate, fails to rebut the presumption that
  the gift of the property was complete on passing and recording the deed. 
  In the absence of any truly material evidence that the joint tenancy in
  this case was not a gift, I would affirm summary judgment.          
        
       ¶  17.  The precise question before us is this:  has mother set forth
  sufficient evidence to rebut the presumption that the 1984 deed was a gift
  to survive summary judgment? (FN2)  The majority aptly recites our
  gift-presumption where property is titled jointly.  See ante, ¶ 12;
  Phillips v. Plastridge, 107 Vt. 267, 269-70, 179 A. 157, 158 (1935); In re
  Estate of Adams, 155 Vt. 517, 521, 587 A.2d 958, 961 (1990).  We have
  explained that "the lack of words of survivorship denies to a claim of gift
  the support their presence would give to a donative intent."  Tucker v.
  Merchants Bank, 135 Vt. 597, 600-01, 382 A.2d 212, 214 (1977) (overruled on
  other grounds in Adams, 155 Vt. at 521 n.1, 587 A.2d  at 961 n.1).  Thus,
  terms of survivorship-like those in the 1984 deed-are indicative of
  donative intent.  Additionally, the general presumption that one intends
  the natural consequences of one's acts applies to the creation of joint
  tenancies such that an intent to create a present interest in the donee is
  presumed.  Adams, 155 Vt. at 521, 587 A.2d  at 961 ("It is generally
  presumed that one intends the natural consequences of one's acts.  Since
  decedent established the accounts as absolute joint accounts, presumably
  she intended to so establish them.") (internal citation omitted); Foucher
  v. First Vt. Bank & Trust Co., 821 F. Supp. 916, 923 (D. Vt. 1993).     
                                    
       ¶  18.  Furthermore, the presumption of gifts for transfers between
  parents and their children, including adult children, is well established. 
  See Phillips, 107 Vt. at 270, 179 A.  at 158 (1935) (describing presumption
  of acceptance of gifts between parents and children); see also Moore v.
  Moore, 138 N.E.2d 562, 564 (Ill. 1956) (applying presumption of gifts to
  parents and adult children); Boatright v. Perkins, 894 P.2d 1091, 1094
  (Okla. 1995) (articulating rebuttable presumption of gift between parent
  and child where parent pays purchase price and legal title is conveyed to
  child); Hayne Federal Credit Union v. Bailey, 489 S.E.2d 472, 476 (S.C.
  1997) (applying presumption to adult children).  It is equally well
  established that, to rebut the presumption of parent-child gifts, the
  challenger must prove the lack of donative intent by clear and convincing
  evidence.  See, e.g., Hooks v. Hooks, 63 So. 2d 348, 350 (Ala. 1953);
  Judgment Servs. Corp. v. Sullivan, 746 N.E.2d 827, 831 (Ill. Ct. App.
  2001); Prange v. Prange, 755 S.W.2d 581, 593 (Mo. Ct. App. 1987); Kyles v.
  Kyles, 832 S.W.2d 194, 197 (Tex. Ct. App. 1992). 
   
       ¶  19.  The majority, however, concludes that mother's stated intent
  of avoiding probate sufficiently rebuts the gift presumption to create a
  genuine issue of material fact.  Numerous decisions have held to the
  contrary, and I would follow them.  Courts have held that a stated intent
  of financial planning, including the avoidance of probate, does not rebut
  the presumption that jointly titled property is intended as a gift.  See
  Bartlett v. Bartlett, 2006 OK CIV APP 112, ¶¶ 20-21,144 P.3d 173
  (noting that "[t]he weight of authority from other jurisdictions supports
  [the] view" that creation of a joint tenancy for purposes of estate
  planning does not rebut the presumption of a gift).  See In re Marriage of
  Moncrief, 535 P.2d 1137, 1138 (Colo. App. 1975) ("The parties' explanation
  that the title was placed in joint tenancy so as to avoid inheritance taxes
  does not overcome the presumption that a gift occurred; it merely expresses
  a reason why the gift was made."); In re Marriage of Smith, 638 N.E.2d 384,
  389 (Ill. Ct. App. 1994) (holding that intent to avoid probate does not
  rebut joint title gift presumption); Stevenson v. Stevenson, 612 A.2d 852,
  855, 855 n.5 (Me. 1992) (affirming conclusion that joint titling of
  property was gift where stated intent was estate planning); McLean v.
  McLean, 374 S.E.2d 376, 381, 381 n.3 (N.C. 1988) (affirming finding that
  presumption of gift was not rebutted by joint titling of property for
  purpose of estate tax, citing Moncrief); L. Morgan & E. Synder, When Title
  Matters: Transmutation and the Joint Title Gift Presumption, 18 J. Am.
  Acad. Matrimonial Law 335, 352 (2003) ("The most commonly stated reason to
  negate donative intent is that the conveyance into joint title was made for
  estate planning purposes, to avoid probate taxes.  In many states, this
  reason has been held simply insufficient, because the party actually
  intended to transfer legal title.").  In direct opposition to the
  majority's holding, numerous courts have held that a stated intent of
  estate planning is in fact affirmative evidence of donative intent. 
  Bartlett, 2006 OK CIV APP 112, ¶ 21 n.18 (collecting cases across
  jurisdictions). 

       ¶  20.  I recognize that the most common precedents are divorce cases
  because the question of donative intent most commonly arises in this
  context.  This is a distinction without difference, however, because the
  factual and legal significance of a stated intent of estate planning does
  not, and should not, vary depending on the familial relationship of the
  parties.  Courts have equated the presumption of gifts between spouses to
  the presumption of gifts between parents and children, noting that, in both
  instances, the grantee is a "natural object of the [grantor's] bounty." 
  Sullivan, 746 N.E.2d  at 831; see also Hooks, 63 So. 2d  at 350 (equating two
  presumptions); Clary v. Fleming, 198 P. 546, 547 (Mont. 1921) (same);
  Bailey, 489 S.E.2d  at 475-76 (same).  
        
       ¶  21.  I also recognize that there is a split of authority on the
  issue of whether estate planning considerations can rebut the joint title
  gift presumption.  See 1 B. Turner, Equitable Distribution of Property §
  5:44, at 488-89 (3d ed. 2006) (collecting cases).  Contrary to the
  majority's assertion that one side of this issue is "favored by this
  Court," ante ¶ 7, however, this treatise does not place Vermont on either
  side of the debate.  Id.  It thus supports the notion that this is an open
  question in our state that we can decide based on the relevant policy
  considerations.  Retention of the gift presumption for joint tenancies
  where the grantor's stated intent is one of estate planning is consistent
  with the fundamental purpose of record title-to simplify and make
  transparent the ownership of land.  See Carpenter v. Hollister, 13 Vt. 552,
  557 (1841) (characterizing as "dangerous" the contradiction of record title
  by parol evidence).  I would hold, therefore, that the better policy is to
  presume in favor of title as evidenced by the deed, and not allow recorded
  titles to be undercut by self-serving testimony of contrary intent.  We
  should recognize that creating fictitious ownership of land, revokable at
  will, is not legitimate estate planning, but is evasion of probate rules
  intended to protect beneficiaries, creditors, and the public fisc.  We
  should not countenance such evasion.  

       ¶  22.  To buttress its notion that a grantor's subjective intent can
  defeat record title and the joint title gift presumption, the majority
  relies almost entirely on Stephan v. Lynch, 136 Vt. 226, 388 A.2d 376
  (1978).  In Stephan, the issue as framed by the Court was whether the
  defendant son "took advantage of [his mother's] generosity in purchasing a
  home with her own assets and putting it in their joint names, by driving
  her out of it and taking possession of the premises."  Id. at 227, 388 A.2d 
  at 377.  The Court recited findings that the defendant had "persuaded his
  mother to put her home in their joint names to avoid having to go through
  the probate procedure in the event of death."  Id.  The Court described
  later "threats, ridicule and harassment" by the son towards his mother
  which caused her, at the advice of her doctor, to leave the house.  Id. at
  228, 388 A.2d 377-78.   Ultimately, the Court found it "clear from the
  evidence that the plaintiff [mother] had no intention to make an inter
  vivos gift" to her son and "that the defendant was not only well aware of
  [this] but stated that he concurred in it at the time."  Id. at 229, 388 A.2d  at 378.  

       ¶  23.  Viewed in its entirety, the underlying concern in Stephan was
  one of undue influence and "taking advantage" of a mother's generosity
  towards her only son.  That undue influence or duress can rebut donative
  intent is, of course, well established.  Landmark Trust (USA), Inc. v.
  Goodhue, 172 Vt. 515, 525, 782 A.2d 1219, 1228 (2001) (collecting cases). 
  Stephan was not, however, a direct examination of the gift presumption in
  the context of jointly titled real property, as the majority would have it. 
  Indeed, the case is devoid of any such analysis.  Here, unlike Stephan,
  there is no evidence of persuasion on the part of daughter in the creation
  of the joint tenancy.  In fact, there is no evidence of her active
  participation in the conveyance at all.  Stephan does not control. (FN3)
   
       ¶  24.  Finally, the dismissal of mother's claim at this procedural
  stage for her failure to overcome the gift presumption would be an ordinary
  application of summary judgment.  We routinely require nonmoving parties to
  overcome legal presumptions to survive summary judgment.  See, e.g., Earle
  v. State, 2006 VT 92, ¶ 23,  ___ Vt. ___, 910 A.2d 841 (affirming summary
  judgment where nonmoving plaintiff failed to rebut presumption in favor of
  discretionary function exemption); Robertson v. Mylan Laboratories, Inc.,
  2004 VT 15, ¶ 34, 176 Vt. 356, 848 A.2d 310 (affirming summary judgment
  where nonmoving plaintiff failed to meet pretext prong of McDonnell Douglas
  burden shifting standard);.  Such practice is consistent with our general
  rule that where a moving party does not bear the burden of persuasion at
  trial-as is the case here-it may satisfy its summary judgment burden by
  showing that there is an absence of evidence to support the nonmoving
  party's case.  Boulton v. CLD Consulting Eng'rs, Inc., 2003 VT 72, ¶ 5,
  175 Vt. 413, 834 A.2d 37 (citing Ross v. Times Mirror, Inc., 164 Vt. 13,
  18, 665 A.2d 580, 583 (1995)).  The burden is then on the nonmoving party
  to persuade the court of a triable issue of fact.  Id.  

       ¶  25.  Here, to support its reversal of summary judgment, the
  majority emphasizes that daughter did nothing more than deny mother's claim
  that the property was not intended as a gift.  Ante, ¶ 11.  In fact, this is
  all daughter's summary judgment burden requires.  The burden is on mother
  to rebut the presumption of donative intent that accompanies the voluntary
  joint-titling of property.  See Adams, 155 Vt. at 521, 587 A.2d  at 961 ("It
  is generally presumed that one intends the natural consequences of one's
  acts.").  I agree with other courts that have addressed this issue that
  "estate planning" merely states the purpose for the gift; it does not rebut
  the joint title gift presumption.  Where mother presented nothing more than
  her unilateral intent to avoid probate to defeat a presumed gift, I would
  affirm summary judgment for daughter.    


  Dissenting:                          BY THE COURT:


  _________________________________    _______________________________________
  John A. Dooley, Associate Justice    Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Brian L. Burgess, Associate Justice


------------------------------------------------------------------------------
                                  Footnotes


FN1.  There are several legal mechanisms that are typically used by property
  holders in estate planning to avoid the inconvenience of probate
  proceedings.  One such mechanism is joint tenancy, which results in the
  automatic transfer of property upon death by operation of law.  Another
  commonly used tool is the revocable trust, which was equally available to
  mother to legally effectuate her stated desire of avoiding probate in the
  event that she retained title to the property at the time of her death.

FN2.  I say this is the question before us because the majority does not
  address the issue raised by the mother's lack of full title when she
  granted the joint tenancy to daughter.  At the time of the conveyance,
  mother shared the property in joint tenancy with her own mother.  Mother's
  conveyance by warranty deed in 1984, therefore, would seem subject to
  mother's mother's one-half interest, leaving daughter with no more than a
  quarter interest.  See State v. Thomas, 131 Vt. 228, 233, 303 A.2d 465, 467
  (1973) ("In a joint tenancy each is said to have seisin of the whole but
  has title only to his aliquot part.") (quotation and citation omitted). 
  Mother's mother, however, died shortly after the 1984 conveyance. 
  Regardless of whether her interest passed to mother by right of
  survivorship or by will, mother subsequently obtained a decree of the
  probate court granting her the right to convey the property free of any
  claim by her mother or her mother's estate.  Mother's claim that daughter
  now only holds a quarter interest in the property, therefore, is defeated
  by the doctrine of after-acquired title.  This doctrine requires the
  following sequence:  first, "a putative conveyor represents in a deed to a
  putative conveyee that the conveyor has title to property," second, "the
  putative conveyor in fact has no title, or at least has less than he
  represents," and finally, "the putative conveyor later acquires some or all
  of the title he represented he had."  14 R. Powell on Real Property §
  84.02[1], at 84-32 (M. Wolf ed. 2007).  Ultimately, "[i]f all three events
  occur, the putative conveyor's newly acquired title passes instantaneously
  to the conveyee."  Id.  Thus, although a grantee does not receive what he
  or she expects when the deed is delivered, later events can pass title to
  that grantee.  Id.    

       The doctrine of after-acquired title has long been recognized in
  Vermont, summarized concisely by the bankruptcy court:  "Under Vermont law,
  a warranty deed conveys the grantor's after acquired title to the grantee
  'by operation of law, in discharge of the covenants of the deed.' "  In re
  Gorman, 82 B.R. 253, 258 n.4 (D. Vt. 1987) (quoting Cross v. Martin, 46 Vt.
  14, 18 (1873)); see also Blake v. Tucker, 12 Vt. 39, 44 (1840) ("The
  general rule, that, where one conveys land, with general covenant of
  warranty of title to the grantee, his heirs and assigns, all title
  subsequently acquired by the grantor will enure for the benefit of the
  grantee, is well established.") (citing Middlebury College v. Cheney, 1 Vt.
  336 (1828)) (other citations omitted).  The purpose of the doctrine is to
  protect the grantee, as well as to effectuate the intent of the parties as
  manifested by the deed.  Blake, 12 Vt. at 44 (rule that subsequently
  acquired title enures to benefit of grantee "prevent[s] circuity of action,
  and carr[ies] into effect the manifest intention of the parties");
  Middlebury College, 1 Vt. at 349 (same).  
   
       Here, by decree of the probate court or otherwise, mother subsequently
  obtained the title she purported to convey in 1984.  Mother's
  after-acquired title thereby enured to the benefit of daughter such that
  daughter has a one-half interest in the property consistent with the terms
  of the warranty deed.

FN3.  Nor does Mizzi v. Mizzi, 2005 VT 120, 179 Vt. 555, 889 A.2d 753 (mem.)
  control.  In that case, the daughter testified that her mother did not have
  donative intent, so we were not dealing with a presumption.  Id. ¶ 6. 
  There is no such evidence here.