Beaucar v. Bristol Federal Sav. & Loan Ass'n

• Decision Date: 29 August 1969
• Citation: 268 A.2d 679,6 Conn.Cir.Ct. 148
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: , 8 UCC Rep.Serv. 216 Armand BEAUCAR, Executor (ESTATE of Hubert A. PONS) v. BRISTOL FEDERAL SAVINGS AND LOAN ASSOCIATION. Armand BEAUCAR, Executor (ESTATE of Hubert A. PONS) v. BRISTOL SAVINGS BANK. No CV 17-6710-5542, CV 17-6710-5592.

Page 679

268 A.2d 679

6 Conn.Cir.Ct. 148, 8 UCC Rep.Serv. 216

Armand BEAUCAR, Executor (ESTATE of Hubert A. PONS) v. BRISTOL FEDERAL SAVINGS AND LOAN ASSOCIATION.

Armand BEAUCAR, Executor (ESTATE of Hubert A. PONS) v. BRISTOL SAVINGS BANK.

No CV 17-6710-5542, CV 17-6710-5592.

Circuit Court of Connecticut, Appellate Division.

Argued June 2, 1969.

Decided Aug. 29, 1969.

George D. Royster, Jr., Hartford, with whom, on the brief, was James E. Hayes, Bristol, for appellant (plaintiff).

Richard H. Alden, Bristol, with whom, on the brief, was Richard D. Gilland, Bristol, for appellees (defendants).

KOSICKI, Judge.

These two causes of action were brought on separate complaints presenting the same issues of law and alleging some basically identical facts. They were tried together by agreement of the parties and order of the court. From a judgment for the defendant in each case the plaintiff has appealed. The appeals have been combined, and therefore only one opinion of this court will suffice for the disposition of both cases. Practice Book § 606; Maltbie, Conn.App.Proc. § 124.

Upon adequate and sufficient evidence, the court found the following facts, which are not subject to any corrections which would materially affect the judgment reached. Armand Beaucar is the duly appointed executor of the estate of Hubert A. Pons. In January, 1966, Pons was the duly appointed conservator of his wife, Mary A. Pons, who was incompetent and confined to a convalescent home. Prior to January, 1966, and continuing to the date of his death, Hubert A. Pons was the joint owner of a bank account in the Bristol Federal Savings and Loan Association, passbook No. S5103, and of another such account in the Bristol Savings Bank, passbook No. 61484. Both accounts were in survivorship with his wife, Mary A. Pons. On January 27, 1966, Hubert A. Pons was admitted to the Bristol Hospital on an emergency basis. He was then eighty-four years of age and suffering from pneumonia, diabetes mellitus, cerebral arteriosclerosis, hardening of the arteries and poor eyesight. He remained there until February 11, 1966. Thereafter, he was transferred to the Farmington Convalescent Home, where he remained until the day of his death. On January 31, 1966, Hubert A. Pons, while a patient in the hospital, signed in duplicate a power of attorney prepared by his attorney, Louis Hanrahan. The only persons present in his hospital room at the time of execution of the document, in duplicate, were his nephews, Armand Beaucar, who as executor is the plaintiff and who signed as a witness, and Raymond Beaucar, who took Pons's acknowledgment. A niece, Dorothy F. Beaucar, sister of Armand, was named as the attorney in fact in this document. Neither of the nephews had inquired of Pons's attending physician or the nurses at the hospital as to Pons's competency to execute a power of attorney.

The trial court could credit the expert testimony of Dr. Nicholas J. Seguljic, who had attended Hubert A. Pons as his personal physician for several years and treated him during his confinement at the Bristol Hospital, that on January 31, 1966, Pons was confused, incompetent, unable to manage his own affairs and not in his right mind to make a decision.

Armand Beaucar delivered the executed powers of attorney to his sister, Dorothy F. Beaucar, approximately one week after they were signed. Dorothy F. Beaucar placed the powers of attorney in a metal box which she kept in her home. Shortly before November 3, 1966, Dorothy F. Beaucar caused photostat copies of the powers of attorney to be made at her place of employment. On the evening of November 3, 1966, Dorothy F. Beaucar, accompanied by Raymond Beaucar, presented Bristol Savings Bank passbook No. 61484 to a teller together with a copy of the power of attorney and requested the withdrawal of the sum of $7101.49 from this account. She did not sign a written withdrawal slip as required by bank rules. Bristol Savings Bank passbook No. 61484 indicated a joint account in survivorship in the bame of Hubert A. Pons and his wife, Mary A. Pons. The teller of the Bristol Savings Bank, after conferring with her supervisor, told Dorothy F. Beaucar that a Probate Court certificate of the appointment of Hubert A. Pons as conservator of the estate of Mary A. Pons was necessary before any withdrawal could be made. Dorothy F. Beaucar left the bank and never returned to request a withdrawal.

After leaving the Bristol Savings Bank, Dorothy F. Beaucar, accompanied by Raymond Beaucar, proceeded to the Bristol Federal Savings and Loan Association, where she presented Bristol Federal Savings and Loan Association passbook No. S5103 to a teller together with a copy of the power of attorney and requested the withdrawal of the sum of $5508.07 from the account. She did not sign a written withdrawal slip as required by bank rules. Bristol Federal Savings and Loan Association passbook No. S5103 indicated a joint account in survivorship in the names of Hubert A. Pons and his wife, Mary A. Pons. The teller of the Bristol Federal Savings and Loan Association, after conferring with a bank officer, told Dorothy F. Beaucar that no withdrawal could be made until legal advice could be secured by the bank. Dorothy F. Beaucar left the bank and made no further effort to withdraw these funds.

Hubert A. Pons died on November 18, 1966. The defendant banks were first notified of the plaintiff's claims through letters signed by his attorney on September 13, 1967. Pons left a will in which Armand Beaucar, Raymond Beaucar and Dorothy F. Beaucar were named as beneficiaries.

The trial court concluded from the foregoing facts, which were sustained by the evidence, tnat (1) On January 31, 1966, Hubert A. Pons was confused, incompetent, unable to manage his affairs and not in his right mind to make a decision, and, accordingly, no authority or agency was granted on the date to Dorothy F. Beaucar; (2) on November 3, 1966, fifteen days before the death of Hubert A. Pons, Dorothy F. Beaucar had no authority to withdraw any moneys from the defendant banks; (3) the plaintiff had failed to sustain his burden of proving by a fair preponderance of evidence that Dorothy F. Beaucar had authority to make withdrawals from the defendant banks on November 3, 1966, as claimed in the complaints; and (4) the defendants sustained their burden of proof with regard to the special defense of the incompetency of Hubert A. Pons on January 31, 1966.

In his assignments of error, the plaintiff claims that the court erred in its failure to correct the finding as requested by him, in reaching the conclusions stated, and in rendering judgment for the defendant in each case when the conclusions arrived at by the court do not support it. The first assignment, claiming errors apparent on the face of the rocord, we disregard. The plaintiff has failed to follow the procedure set out in Practice Book § 959. Furthermore, the assignment avers a question of law which can only be determined on the facts as found after trial and cannot be decided by a mere examination of the pleadings and the actions taken or the rulings made by the trial court in advance of trial. See, e.g., State v. Sul, 146 Conn. 78, 83, 147 A.2d 686.

In considering whether the court erred in failing to correct the finding in accordance with the plaintiff's motion to correct, we cannot overlook the irregular procedure followed by the plaintiff. As pointed out by the defendants, the plaintiff had filed no transcript of evidence with his original motion to correct, as required by our rules. Practice Book § 981. After the motion was denied, the plaintiff filed his assignment of errors but did not file, at the same time, a transcript of such evidence as was relevant and material to the issues on appeal. Practice Book §§ 960, 963. The deficiencies in procedure, however, were partially cured by a later filing of the evidence, by a second motion to correct, which was denied, and by an order of the court extending the time, for each of the parties, for the filing of briefs on appeal. We, therefore, consider the appeal on the merits.

The initial ground of appeal is that the court erred in refusing to correct the finding by including facts claimed by the plaintiff to have been admitted or undisputed and by striking paragraphs claimed to be facts found without evidence. Corrections of findings may not be made on the first ground unless it is clearly established that the fact claimed was admitted or undisputed. 'That a witness testified to a fact without direct contradiction is not of itself sufficient; the trial court must be the judge of the credit to be given to a witness.' Practice Book § 628(a); State v. Coulombe, 143 Conn. 604, 609, 124 A.2d 518; Trenchard v. Trenchard, 141 Conn. 627, 631, 109 A.2d 250; Armstrong v. Watrous, 138 Conn. 127, 128, 82 A.2d 800.

The second claim of error is addressed to the conclusions of the court. The court could reasonably reach those conclusions on the basis of the applicable law and the subordinate facts found. The court was not in error in denying the motion to strike the paragraphs attached.

The facts which the plaintiff seeks to have added to the finding are supported solely by hearsay testimony. They are based on alleged conversations of the plaintiff's decedent with his niece, Dorothy F. Beaucar, and his nephew, Raymond Beaucar. They were admissible in evidence as declarations of a deceased person. General Statutes § 52-172. Such evidence must be examined with care, and the weight accorded to it is for the trier to decide. Joanis v. Engstrom, 135 Conn. 248, 251, 63 A.2d 151. The court could properly take into account that the testimony with respect to this evidence came from two financially interested witnesses. 'The trial court is at liberty to discredit any witness or a multitude of witnesses, if it deems that if has cause to do so.' Antenucci v. Hartford Roman Catholic Diocesan Corporation, 142...