Appeal of Ehrsam

• Decision Date: 28 July 1924
• Citation: 101 Conn. 349,125 A. 621
• Court: Connecticut Supreme Court
• Parties: APPEAL OF EHRSAM ET AL. EHRSAM v. LEE.

125 A. 621

101 Conn. 349

APPEAL OF EHRSAM ET AL. EHRSAM v. LEE.

Supreme Court of Errors of Connecticut.

July 28, 1924

Appeal from Superior Court, Fairfield County; Isaac Wolfe, Judge.

Proceeding for allowance of account of Florence Neary Lee, as guardian for Frederick F. and George W. Ehrsam, minor heirs of Frederick F. Ehrsam, deceased. Judgment in the superior court disallowing certain items, and accepting the account as corrected, and George W. Ehrsam and another, contestants appeal. Error, and new trial ordered.

Nickerson J., dissenting.

Robert H. Gould, of Bridgeport, for appellants.

Henry E. Shannon, of Bridgeport, for appellee.

Argued before WHEELER, C.J., and BEACH, CURTIS, KEELER, and NICKERSON, JJ.

WHEELER, C.J.

Frederick F. Ehrsam, late of Bridgeport, under his will left in trust the residue of his estate to William L. Zepp, one of the appellants, for the benefit of his two minor sons, George W the other appellant, and Frederick F. Ehrsam, appellee herein. The testamentary guardian of these minors appointed under this will deceased and, on October 29, 1918, the appellee Florence Neary, now Florence Neary Lee, was appointed in her stead and duly qualified. The trustee under the will of Frederick F. Ehrsam has from time to time turned over to the guardian certain funds from the income of the trust estate. The estates of these two minors were kept undivided by the guardian, and were handled by her as if they were one, the guardian keeping no separate account of the separate and distinct expenditures made for and to the minors. On March 14, 1923, the guardian filed her account covering the period from November 1, 1920, to February 1 1923, and thereafter filed a supplementary account. The probate court made certain corrections in this account, and thereupon accepted the account. The appellants appealed to the Superior Court from the allowance of this account. It does not appear, and cannot be determined from the account, what expenditures or what application of the property of the estate was made to each ward, nor what disbursements of the same should be charged to them.

On October 20, 1921, the probate court ordered that the guardian should not exceed $250 a month in making expenditures for these minors. The trial court has found these facts: It is not possible, from the manner in which the guardian kept her accounts, to determine as a fact that this order was violated by this guardian. During the period of this account from November, 1920, to February, 1923, the guardian maintained, in a house belonging to the Ehrsam trust estate, a home for herself and wards, and directed the household and did a large part of the work necessary to such support without compensation other than her board and lodging, and out of the $4,400 paid to her as guardian by the trustee she has, as appears on the account, given George for " spending money" $1,081, and Fred $522.45, and in addition has expended for clothing for George $195.15, and for Fred $305.82, and for clothing not charged to the individual ward $313.53, making in all for the personal expenditure of the wards $2,317.94. It also appears from the account that the guardian has advanced, to meet obligations incurred in behalf of the wards, $916.53, and has unpaid bills amounting to $1,581.77. The court has found that the items termed " spending money" were expended by them for various necessities and for pleasure. The items of $48.34 and $96.68 paid by the guardian for insurance, as well as two items of $11.25, were disallowed by the court, and also the item of $500 for services. The court also struck from the account an item of $17.50 for rent of garage, as belonging to the trustee.

The court finds that the guardian acted in good faith, but her management was unbusinesslike and uneconomical, and due to her youth and business inexperience, and, except as to these six items, rendered judgment accepting the account, and further found that the items of the account so accepted were expended by the guardian for the benefit of the wards, and for their support and education.

Such parts of the additions as are included in assignment of errors 24 (c), and are in the draft finding which we find well taken, we incorporate in the statement. The appellant seeks to correct the finding by enlarging the findings of the draft finding. This cannot be done. The paragraphs of the motion to correct must be based substantially upon corresponding paragraphs of the draft finding and the assignments of error must follow the paragraphs of the motion, to correct which appellant pursues.

One of these corrections asks to strike out paragraph 22 of the finding, which finds in substance that the expenditure by the guardian of $250 for the services of an attorney were necessary and required, by reason of the opposition to the allowance of the account in the probate court. The guardian testifying in her own behalf on cross-examination stated that the services charged for were in connection with litigation occurring prior to the matter of the allowance of the account. The guardian did not attempt to contradict or explain this testimony, so that we find no basis in the evidence for this finding, and the motion to strike out paragraph 22 of the finding is granted and, as a consequence, this item of the account must be disallowed.

Claim of law 10, as made in the court below and forming the basis of assignment of error 15, that, " in view of the mode of living and the position in life of the wards, the spending of money not for...