Connecticut Nat. Bank and Trust Co. v. Chadwick

• Decision Date: 22 January 1991
• Docket Number: 14036,Nos. 14035,s. 14035
• Citation: 217 Conn. 260,585 A.2d 1189
• Court: Connecticut Supreme Court
• Parties: CONNECTICUT NATIONAL BANK AND TRUST COMPANY v. Donald W. CHADWICK, et al.

Page 1189

585 A.2d 1189

217 Conn. 260

CONNECTICUT NATIONAL BANK AND TRUST COMPANY v. Donald W. CHADWICK, et al.

Nos. 14035, 14036.

Supreme Court of Connecticut.

Argued Nov. 2, 1990.

Decided Jan. 22, 1991.

Ralph G. Elliot, with whom, on the brief, was William F. L. Rodgers, Hartford, for appellants in the first appeal, appellees in the second appeal (defendant Heather Webb Fickes Foote et al.).

Wesley W. Horton, with whom was Kimberly A. Knox, Hartford, for appellants in the second appeal, appellees in the first appeal (named defendant et al.).

Thomas J. Groark, Jr., with whom were Hyacinth Douglas-Bailey and, on the brief, Michael W. Elsass and Ruth A. Kurien, Hartford, for appellees in both appeals (defendant Donald G. Fickes et al.).

Before CALLAHAN, GLASS, HULL, BORDEN and FRANCIS X. HENNESSY, JJ.

HULL, Associate Justice.

The dispositive issue in these consolidated appeals is whether the adopted grandchildren of Edwin Stanton Fickes, the testator, are included within the term "grandchildren" as used in the testator's will and, therefore, beneficiaries of a trust created by the will. The trial court found that Donald G. Fickes and Jackson W. Fickes (adopted grandsons), twin boys adopted by the testator's son, Charles Fickes, before the testator's death, were entitled to share in the trust assets along with the the testator's four natural grandchildren, but that Barbara Ann Fickes Lyttle and Heather Webb Fickes Foote (adopted granddaughters), adopted by Charles long after the testator's death, were not so entitled. We conclude that all of the adopted grandchildren are included within the meaning of the word "grandchildren" as used in the testator's will. Accordingly, we affirm that portion of the judgment of the trial court including the adopted grandsons in the trust distribution and reverse that portion of the judgment excluding the later adopted granddaughters.

The factual and procedural background of the cases as found by the trial court and asserted by the parties is not in dispute. Edwin Stanton Fickes, the testator, died a resident of Washington on December 19, 1943. He left a will dated November 19, 1940, that provided for the creation of a separate trust upon his death. The will further provided that upon the death of the testator's last surviving child, one half of the trust property was to be distributed to Rensselaer Polytechnic Institute and the other half of the trust property distributed "in equal portions between [the testator's] grandchildren then living."

At the time of death of the testator's last surviving child, there were four biological grandchildren of the testator then living, Donald W. Chadwick and Marguerite Chadwick, children of the testator's daughter, Harriet Fickes Chadwick, and Mary Gord Beimfohr-Zimm and Martha Bennett Piccirilli, children of the testator's son, George Jackson Fickes. In addition, there were four adopted grandchildren living. Donald George Fickes and Jackson Webb Fickes had been adopted by the testator's son, Charles Fickes, on June 22, 1942, prior to the testator's death. Barbara Ann Fickes Lyttle and Heather Webb Fickes Foote had been adopted by Charles on June 23, 1962, and June 25, 1965, respectively, subsequent to the testator's death.

The plaintiff, Connecticut National Bank, as trustee, brought a declaratory judgment action in the Superior Court seeking a determination of whether the testator's adopted grandchildren were entitled to share in the trust distribution. On December 6, 1989, the trial court found that the testator had intended to include his adopted grandsons as "grandchildren" within the meaning of his will and, therefore, that they were entitled to share in the trust distribution. On the other hand, the court concluded that because the testator could not have intended to include his adopted granddaughters as "grandchildren," they were not entitled so to share.

The adopted granddaughters appealed the judgment to the Appellate Court. The natural grandchildren also appealed the judgment insofar as it found that the adopted grandsons were entitled to share in the trust distribution. ¹ We subsequently transferred the appeals to this court pursuant to Practice Book § 4023.

Based upon the various claims of the three parties in these appeals, the issues for our resolution are whether: (1) the adopted grandchildren of the testator are within the meaning of the term "grandchildren" as used by the testator in his will and thus entitled to share in the trust distribution; (2) the trial court improperly admitted post execution evidence in order to determine the testator's intent at the time he executed his will; and (3) the trial court improperly admitted two letters under the business records exception to the hearsay rule.

I

"Significantly, the common law presumed that an adopted child is not within the intended bounty of a settlor who, as a nonadopting parent, is a stranger to the adoption. Mooney v. Tolles, 111 Conn. 1, 9, 149 A. 515 (1930); Middletown Trust Co. v. Gaffey, 96 Conn. 61, 67-68, 112 A. 689 (1921)." Schapira v. Connecticut Bank & Trust Co., 204 Conn. 450, 455, 528 A.2d 367 (1987). In 1959, the legislature enacted Public Act No. 106, ² the predecessor to General Statutes § 45-64a, ³ which reversed this common law presumption; it expressly restricted the application of the act, however, to any will or trust instrument executed after October 1, 1959. Since the will of the testator was executed on November 19, 1940, the common law presumption applies in this case. Connecticut Bank & Trust Co. v. Coffin, 212 Conn. 678, 686-87, 563 A.2d 1323 (1989).

"[C]ommon law presumptions do not invariably govern interpretation of the terms of a will. Because the touchstone of trust interpretation is the intent of the settlor, the presumptions in favor of ancestral blood give way when an intent to include adoptees 'definitely appears from a reading of the instrument in light of the circumstances surrounding the settlor at the time of execution.' Connecticut Bank & Trust Co. v. Bovey, 162 Conn. 201, 206, 292 A.2d 899 (1972); see also Connecticut Bank & Trust Co. v. Lyman, 148 Conn. 273, 279, 170 A.2d 130 (1961)." Schapira v. Connecticut Bank & Trust Co., supra, 204 Conn. at 455-56, 528 A.2d 367. Furthermore, "[s]uch presumptions, except as they may tend to produce some measure of certainty as to the meaning which will be judicially given to the words used by the testator in his will, merely state considerations which experience has shown are apt to be in the minds of testators, to be given such weight in a particular case as its circumstances justify; they are merely aids to construction which cannot prevail over an intent fairly deducible from the terms of the will read in the light of the surrounding circumstances." Trowbridge v. Trowbridge, 127 Conn. 469, 473-74, 17 A.2d 517 (1941). Therefore, although the common law presumption against including adoptees as beneficiaries of a will applies in this case, the intent of the testator is dispositive of whether his adopted grandchildren are "grandchildren" within the meaning of his will.

A

Before examining the evidence of the testator's intent, we must first consider a question of burden of proof. The natural grandchildren claim that in assessing the evidence of intent the trial court applied an insufficient standard of proof that requires that its judgment including the adopted grandsons as trust beneficiaries be reversed. They argue that: (1) because the judgment fails to indicate the standard of proof applied by the court, it must be assumed that the trial court applied the civil standard of a fair preponderance of the evidence, citing In re Juvenile Appeal (83-AB), 189 Conn. 58, 59, 454 A.2d 271 (1983); and (2) in light of the principle that the language of a will is to be given its primary meaning unless a contrary intent clearly or definitely appears, the court should have applied an intermediate burden of proof such as "clear and convincing evidence," "clear and satisfactory evidence" or "clear and positive proof." See J. Frederick Scholes Agency v. Mitchell, 191 Conn. 353, 358, 464 A.2d 795 (1983); Clark v. Drska, 1 Conn.App. 481, 486-87, 473 A.2d 325 (1984). This claim is without merit.

" 'The construction of a will presents a question of law to be determined in the light of facts which are found by the trial court or are undisputed or indisputable'. Spurr's Appeal, 116 Conn. 108, 111, 163 A. 608 [1933]; see Davis v. Margolis, 107 Conn. 417, 420, 140 A. 823 [1928]." Hershatter v. Colonial Trust Co., 136 Conn. 588, 596, 73 A.2d 97 (1950). "When the facts have been found or are undisputed, nothing remains but for the trial court to exercise its legal judgment and ' "to draw its inference from the facts.... [I]n such a case the conclusion of the court can always be reviewed by the appellate court. An erroneous conclusion is an error of law and not an error in an inference of fact." Hayden v. Allyn, 55 Conn. 280, 289, 11 Atl. 31 [1887].' Davis v. Margolis, [supra, 107 Conn. at 421, 140 A. 823]." Carr v. Huber, 18 Conn.App. 150, 154, 557 A.2d 548 (1989).

Since the issue of the testator's intent presents a question of law, our review of the trial court's judgment that the testator intended to include his adopted grandsons as beneficiaries requires that we independently examine the record to determine whether the facts found by the trial court support this conclusion. See Connecticut Bank & Trust Co. v. Bovey, supra, 162 Conn. at 205-206, 292 A.2d 899 (conclusion reached by the trial court regarding the testator's intent must stand unless it was legally or logically inconsistent with the facts found). Therefore, we need not address the propriety of the standard of proof utilized by the trial court.

Moreover, although our cases on will construction use the word "clear" or "clearly" in relation to a finding of a testator's intent contrary to the ordinary meaning of the words...