Howard v. MacDonald

• Court: Connecticut Supreme Court
• Writing for the Court: KATZ, J.
• Citation: Howard v. MacDonald, 270 Conn. 111, 851 A.2d 1142 (Conn. 2004)
• Decision Date: 13 July 2004
• Parties: WILLIAM HOWARD, EXECUTOR (ESTATE OF HEDWIG G. WILLIAMS) v. BONNIE MACDONALD ET AL.

270 Conn. 111

851 A.2d 1142

WILLIAM HOWARD, EXECUTOR (ESTATE OF HEDWIG G. WILLIAMS) v. BONNIE MACDONALD ET AL.

(SC 17136), (SC 17137).

Supreme Court of Connecticut.

Argued May 20, 2004.

Officially released July 13, 2004.

Sullivan, C. J., and Norcott, Katz, Palmer and Zarella, Js.

David W. Rubin, with whom was Noah J. Schafler, for the appellee in Docket No. SC 17136, appellant in Docket No. SC 17137 (plaintiff).

Everett E. Newton, with whom was Dena M. Castricone, for the appellant in Docket No. SC 17136, appellee in Docket No. SC 17137 (named defendant).

Opinion

KATZ, J.

This case arose from the alleged breach of a fiduciary duty, statutory theft in violation of General Statutes § 52-564,¹ and exercise of undue influence by the named defendant, Bonnie MacDonald (defendant),² in obtaining moneys from Hedwig G. Williams (decedent), who died on August 27, 1998. The dispositive issue in these appeals³ is whether the trial court properly set aside the jury's verdict in favor of the plaintiff, William Howard, executor of the estate of the decedent, his aunt, against the defendant for statutory theft. We agree with the plaintiff that the trial court abused its discretion in setting aside the jury's verdict and, accordingly, we reverse in part the judgment of the court.

The jury reasonably could have found the following facts. In 1972, the decedent and her husband, William J. Williams, moved into the Merrit Apartments complex in New Canaan, where the defendant and her mother also lived. After her husband's death in 1977, the decedent continued to live alone and was able to take care of her own affairs, until May, 1994, when at age ninety, she gave her nephew, the plaintiff, a durable power of attorney. In June, 1994, the decedent executed her last will and testament and named the plaintiff the executor of her estate, authorizing him to dispose of all her personal property. In her will, the decedent included thirteen specific bequests: four to charities totaling $19,000 and nine to individuals totaling $81,000. Specifically, she left $25,000 to her sister Caroline G. Orell, $15,000 to the plaintiff, $5000 to her brother, $5000 to her niece, $5000 each to two different nephews, $5000 to her brother-in-law, $5000 to her sister-in-law or her husband, and $1000 to Lillian MacDonald, the defendant's mother. The rest, residue and remainder of her estate she bequeathed as follows: one quarter to the Lockwood-Mathews Mansion Museum, one quarter to St. Jude Children's Research Hospital and one half to her sister, Orell. Under the will, if Orell were not to survive the decedent or if she were to die with the decedent under circumstances making it impossible to determine the order of their deaths, or if she were to disclaim her interest, then Orell's portion would pass on to the two aforementioned charities in equal shares. Notably, the will did not mention the defendant.

In 1996, after the decedent had been admitted to the hospital for shortness of breath, the department of social services, through the protective services for the elderly program, began an investigation regarding the decedent's ability to care for herself. Carolyn Kyle, a thirty-three year veteran of social work who became involved in the decedent's case, was concerned because the decedent's "short-term memory was all but gone," she did not recognize family members, she refused or would forget to take her medication and she would not allow a visiting nurse to see her. In deciding whether the decedent should continue to live alone, Kyle found the decedent's situation to be "marginal" and considered filing a conservatorship petition. She decided against that, however, after speaking with the plaintiff, who agreed to seek a durable power of attorney, and after arranging for a visiting nurse and for the defendant and her mother, with whom the decedent was close, to check on the decedent regularly and make sure she took her heart medication.

The plaintiff, who in 1994 had started to notice the decedent's deteriorating mental condition, became actively involved in assisting her with her finances. With her acquiescence, the plaintiff took possession of the decedent's certificates of deposit, savings passbooks, checkbooks, check registers and some securities. He inventoried her assets and provided her with a copy. The plaintiff's calculation indicated that the accounts totaled approximately $300,000. He began paying her rent, telephone, cable and electric bills and sent each company a copy of the power of attorney with a request that all future bills be sent to him directly. Additionally, the plaintiff sent letters to Fairfield County Savings Bank, Norwalk Savings Society and Gateway Bank, informing them of the power of attorney and asking that all future bank statements and 1099 forms be sent directly to him. The plaintiff arranged for a $1500 a month rollover from the decedent's savings account into her checking account. The plaintiff also arranged for the decedent's monthly $606 social security check, as well as $1800, which came from a trust established by her husband's will, to be deposited into the same checking account. From this account, the plaintiff paid the decedent's bills, and along with a brief explanatory note, sent the decedent $75 each week for her needs.

In November, 1996, the plaintiff learned that the defendant had accompanied the decedent to a New Canaan branch of Chase Manhattan Bank, where the decedent requested that a certificate of deposit be transferred to the defendant. Dorothy Fronio, a bank employee who had known the decedent for several years, called the plaintiff's office to express concern. Fronio had observed the decedent's mental state deteriorate during the course of several years. Often, when she came into the bank, the decedent forgot why she was there and wondered whether she was in the correct bank. On those occasions, Fronio, who knew that the plaintiff had a power of attorney, telephoned him for direction. Therefore, Fronio was concerned when, in November, 1996, the decedent came into the bank with a woman, whom Fronio did not know, to withdraw a large sum of money. Fronio found the decedent to be "in her normal confused state . . . ." According to Fronio, the decedent "was confused about why she was there. I didn't think that she really wanted to [withdraw the money], or knew what she was doing." The defendant did most of the talking and explained that the decedent was lending her money for an educational purpose. Fronio's impression was that the decedent did not know why she was signing the withdrawal slip or even that "she was giving away a large sum of money." As someone trained by the bank in looking out for the elderly, Fronio was concerned that the decedent was being taken advantage of by the defendant. As a result, Fronio refused to disburse the money, which caused the defendant to be "a little bit perturbed."

On December 20, 1996, the decedent wrote the plaintiff a letter advising him that she wanted to give the defendant a gift but she did not provide an amount. Specifically, the decedent asked him to sign forms that would allow her to give the defendant "a gift of [blank] to assist her in law school." The form of this letter was not consistent with notes she had sent him in the past. As a result, the plaintiff telephoned the decedent on January 6, 1997, to ascertain what amount she had in mind. When she did not articulate an amount, the plaintiff questioned her whether $5000 was what she intended, but the decedent could not answer and stated that she would get back to him after checking her notes. The plaintiff explained to her that gifts for educational purposes could be made directly to the school involved.

On the very next day, January 7, the decedent made arrangements to transfer $35,000 from an investment account at the Norwalk Savings Society, of which the plaintiff had been unaware. The defendant telephoned the bank and personally asked the representative how much money the decedent had in her various accounts. The defendant made a second telephone call to ascertain how the funds could be transferred to her. Then, outside the decedent's presence, the defendant typed a letter to the bank to effectuate the transfer of the $35,000 in the investment account to her and her mother over the course of the following two years. The letter was complete with details of amounts, account numbers, social security numbers and specific instructions. Within one week, the bank sent a check for $10,000 to the defendant and another check for $10,000 to the defendant's mother, who subsequently turned those funds over to the defendant. The plaintiff only learned about this transfer in March, 1997, after Stephen B. Keogh, an attorney who subsequently was appointed as the decedent's conservator, brought it to his attention. Otherwise, the plaintiff would not have discovered the withdrawal until the following January when the bank would have issued a 1099 form.

On January 23, 1997, approximately two weeks after the first transfer of funds from the Norwalk Savings Society, the plaintiff received a telephone call at home from the decedent, through the assistance of a telephone operator. The decedent was in an agitated state as she explained that she had gone to the Fairfield County Savings Bank with the defendant where the decedent withdrew all the money in her account and transferred the funds to the defendant. The decedent told the plaintiff that she wanted him to get the money back. He believed that, by being in possession of the decedent's actual passbook as previously arranged under his power of attorney, the funds were safe. As in the case of the withdrawal from the Norwalk Savings Society account, had the decedent not telephoned the plaintiff, he would not have discovered the withdrawal of $94,242.09 until the following January when the 1099 form would have been issued.

Immediately thereafter, the plaintiff...