French v. Oberreuter

• Citation: 157 Conn. 181,251 A.2d 67
• Decision Date: 20 November 1968
• Docket Number: No. 105695,105695
• Court: Supreme Court of Connecticut
• Parties: Clinton E. FRENCH v. Paul OBERREUTER et al. (Estate of Irma S. FRENCH).

Page 67

251 A.2d 67

157 Conn. 181

Clinton E. FRENCH v. Paul OBERREUTER et al. (Estate of Irma S. FRENCH).

No. 105695.

Supreme Court of Connecticut.

Nov. 20, 1968.

William A. Phillips, Greenwich, for appellant (plaintiff).

John W. Barnett, New Haven, with whom, on the brief, was Thayer Baldwin, Jr., New Haven, for appellees (defendants).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ. ALCORN, Associate Justice.

Appeals from the judgments in two cases have been taken by the plaintiff and, on stipulation of the parties, have been combined in a single record. The plaintiff married Irma Swift Oberreuter on October 29, 1949, and she died on March 7, 1962. It was a second marriage for each. The named defendant is her son by a prior marriage and is the executor and trustee named in her will. For convenience he will be referred to hereinafter as the defendant.

On October 20, 1964, the plaintiff brought an action against the defendant, individually and in his fiduciary capacity, seeking $200,000 damages or an accounting for and a reconveyance of moneys and property which the plaintiff claimed to have transferred to Irma during their marriage at her request and on her representation that she would invest them for their mutual benefit but which she had, in breach of her trust, placed in her own and the defendant's name or the survivor of them. The defendant denied that the claimed transfers were made in trust, denied the alleged breach of trust and pleaded, as special defenses, the Statute of Limitations, laches, the failure to present a claim against the estate, and payment. On these issues, the court rendered judgment for the defendant, and the plaintiff has appealed.

On August 3, 1965, the Probate Court for the district of Milford approved and allowed the final administration account filed by the defendant for the estate of Irma Swift French, and, on August 30, the plaintiff appealed to the Superior Court. The fifteen reasons of appeal complain, in substance, of the executor's failure to comply with the terms of the will, the failure to pay the plaintiff an allowance ordered by the Probate Court, the improvident sale of real estate without Probate Court approval, the misapplication of income and the proceeds of the sale, the improper liquidation of a mortgage, the allowance for expenses, and that the account showed that the estate was not fully settled. On these issues also the court rendered judgment for the defendant, and the plaintiff has appealed.

The court's finding is not subject to correction in any material respect. Errors assigned in findings of subordinate facts and in rulings on evidence are not pursued in the brief and need not be considered. Wood v. Town of Wilton, 156 Conn. 304, 305, 240 A.2d 904; Johnston Jewels, Ltd. v. Leonard, 156 Conn. 75, 77, 239 A.2d 500.

The issue in the first case is whether the facts, as found by the trial court, support the conclusion reached by the court that the transactions between the plaintiff and his wife did not give rise to the trust relationship which the plaintiff claimed for them. This we must decide on the facts found by the trier. We do not retry facts or determine the credibility of witnesses. Faiola v. Faiola, 156 Conn. 12, 15, 238 A.2d 405.

The court has found that, at the time of his marriage to Irma, the plaintiff was conducting a marine supply business in Milford through The C. E. French Company, a corporation in which he owned all but two shares of the stock. His residence, a brick building and warehouse used in the marine supply business, the land on which they stood, and adjacent lots were owned by that corporation. He also owned all but two shares of the stock of Wildman's Landing Corporation, which owned about ten acres of land, including a lakeside resort development, near Danbury. He also had other funds, properties and investments.

Irma was a voice teacher, and she continued that occupation after her marriage to the plaintiff. During the week, she lived in a studio maintained by her in New York and spent the weekends with the plaintiff in Milford. She was sixty-eight years old at the time of her death in 1962.

Irma interested herself in the plaintiff's business affairs in the summer of 1949, particularly in their joint but unsuccessful effort to retain, for The C. E. French Company, a franchise from the Evinrude Motor Company. Following their marriage, they jointly endeavored to sell some of the realty owned by Wildman's Landing Corporation.

The court expressly discredited claims made by the plaintiff that The C. E. French Company had grossed three-quarters of a million dollars in one year; that his net worth at the start of 1949 was $207,107.46; that he had placed funds in Irma's safe deposit box to which she, but not he, had access; that he had always left at least $20,000 there; that Irma had said 'we might as well get married and go through it together as to work it out alone * * * you need someone like me to work with you'; that she had assured him that he could trust her, and by turning funds over to her, they would be safely kept and protected from creditors and would be invested for their mutual old age; and that, when he assigned mortgages to Irma, she had said: 'We should have some things that are not in the name of the corporation, and due to your eye condition we should start protecting ourselves with something for our old age. I can handle the keeping track of the payments for you and the mortgages and see that the payments are made on time and interest properly collected and keep the proper records for you and we will start a trust between us for our old age.'

The court found that the plaintiff and his wife had made mutual wills in December, 1949, in which each had left his entire estate to the other, but it discredited his claim that he had not changed his will or that he did not know, until Irma's death, that she had changed her will. The court found, however, that Irma had executed a new will in 1961 about which more will be said later.

The transactions which were in issue during the trial involved the sale of, and the disposition of the proceeds from, various properties of The C.E. French Company and the Wildman's Landing Corporation. The loss of the Evinrude franchise by The C. E. French Company in 1949 was a financial blow, and Irma made advances to the company which totaled, with interest, $20,293.04 as of August 31, 1954. A mortgage on the corporate property secured $12,500 of this amount. The company's warehouse and the land on which it stood were sold, and the proceeds were turned over to Irma in part payment of the company's indebtedness to her. The mortgage was liquidated, and $832.41, which was still owing on the indebtedness, was transferred by Irma from a bank account in which the plaintiff had an interest to an account owned by her and the defendant. Thereafter, the remaining real estate owned by the corporation was transferred to Irma for $100 and 'other good and valuable considerations', after which she advanced or obligated herself to the extent of $43,772.45 to or for the benefit of the corporation. From then until her death, Irma leased the business portion of the premises to the company for a rental sufficient to cover taxes, insurance and amortization on all the realty, and the plaintiff and Irma occupied the residence rent free. Irma sold a portion of the property for $30,000 in 1960, using a part of the proceeds to reduce the principal balance of mortgages on the property acquired from the company. The rest of the property stood in her name at the time of her death subject to a bank mortgage of $9771.97.

The plaintiff, with his mother, had sold certain other real estate and had received notes secured by mortgages aggregating $25,000 in connection with the sale. He assigned these notes and mortgages to Irma and reported the transaction to the Internal Revenue Service as a gift. Irma later received the proceeds of the mortgages and used them for investment and reinvestment. He also gave Irma an undisclosed number of shares of Outboard Marine Motor stock. Items received by Irma were variously held by her in her own name, in her name and the plaintiff's, and in her name and the defendant's.

The court concluded that the plaintiff failed to prove that he had transferred any funds or property to Irma under the terms of a trust, express or implied, or as his agent; that the transfer of the $25,000 in mortgages was an outright gift; and that the transfers from The C.E. French Company were in partial satisfaction of loans or other valuable considerations furnished by Irma to the company.

These conclusions are fully supported by the subordinate facts, and consequently the judgment in the first case cannot be disturbed.

We turn then to the issues raised in the appeal from probate. The material facts found by the court relating to this appeal are as follows. At her death, Irma left a will which provided: 'I order and direct that all my just debts, including taxes upon real property and funeral expenses, be paid as soon as may be convenient after my decease.' The will left her tangible personal property and the residue of her estate to the defendant, who was also named executor. The will also contained the following provision: 'FOURTH: I have made no provision in this my Will, except as provided in this paragraph, for my husband, Clinton E. French, because of the fact that over the years that we have been married he has proven himself to be unable to earn a livelihood for either himself or for me.

'However, I am the owner of the premises located at 56 Bridgeport Avenue, Milford, Connecticut, and I direct my Executors or Trustees under this my Last Will and Testament, to sell said property as soon as possible after my decease, and I bequeath to my Trustee hereinafter named, the proceeds of the sale of said property; to hold, manage, invest, and re-invest said proceeds and to collect...