Little v. Little

• Citation: 200 A.2d 276,124 Vt. 178
• Decision Date: 07 April 1964
• Docket Number: No. 63,63
• Parties: Esme LITTLE v. Russell LITTLE and Martha Little.
• Court: United States State Supreme Court of Vermont

Page 276

200 A.2d 276

124 Vt. 178

Esme LITTLE v. Russell LITTLE and Martha Little.

No. 63.

Supreme Court of Vermont.

April 7, 1964.

Samuel W. Fishman, Vergennes, Francis D. Foley, Joseph C. McNeil, Burlington, for plaintiff.

Omer L. Moreau, Burlington, for defendants.

Before HOLDEN, C. J., and SHANGRAW, BARNEY and SMITH, JJ., and DALEY, Superior Judge.

SMITH, Justice.

This is an appeal from a decree of the Addison County Court of Chancery dismissing the bill of complaint brought by the plaintiff, and decreeing to the defendants funds on deposit in the Burlington Savings Bank represented by a joint account in the names of the defendants and one Fred C. Little, deceased.

Plaintiff, by her bill of complaint, sought to enforce a claimed trust relative to the deposit in the Burlington Savings Bank. The money, represented by the deposit, was the savings of one Fred Little, known to both parties as 'Uncle Fred.' As of August 25, 1961, the deposit was in the nature of a trust account, with Fred Little as trustee for Esme A. Little, the appellant here, with a reservation of the right of revocation in Fred Little. On Oct. 4, 1961, Fred Little revoked the trust account for the benefit of Esme Little and established a joint account, with the right of survivorship, in his name and those of the two defendants, Russell and Martha Little. The account then remained unchanged until the death of Fred Little on Oct. 31, 1961, at the age of 92. The plaintiff, Esme, was a grandniece of the late Fred Little, and the defendant, Russell Little, was his nephew.

The plaintiff's brief first presents claimed error on the part of the Chancellor in alleged failure to make a finding as to the mental capacity of Fred Little at the time he revoked the trustee account for Esme Little, and established the joint account with the defendants. Error is also alleged in the failure of the Chancellor to find in accordance with the request to find of the plaintiff that Fred Little was incompetent at the time of the change in the bank account.

The undisputed findings made below disclose that Fred Little was a frugal, self-reliant individual, unable to read or write except in the matter of his own name. He kept his money, amounting to a little over $28,000 for many years in the Burlington Savings Bank, although the number and nature of the deposits representing this money were changed by him with considerable frequency over the years.

Fred Little had made his residence with the plaintiff, her father and mother, in Monkton since about 1946. He continued to live with the plaintiff after the death of her father, and later her mother, and continued such residence with the plaintiff after a time that she moved from Monkton to Vergennes. At the commencement of his residence with the plaintiff, Fred paid $4 a week for his board, room, and laundry, increasing this amount to $5 per week after the death of plaintiff's father, and to $7 a week after the death of the mother.

Fred Little, however, did not constantly stay at the home of the plaintiff. During the Spring and Fall he would 'make the rounds' visiting other relatives for varying lengths of time. At one time he visited the defendants, who live in Shelburne, for a period of three months after he had been a patient in the DeGoesbriand Hospital in Burlington. He also used to visit at the home of another nephew, Arthur Little in Ferrisburg.

It is apparent from the record of his accounts at the Burlington Savings Bank that in the last seven years of his life, Fred Little, as many aged people do, frequently changed his mind on which relatives should eventually be the beneficiaries of his bounty. In 1954, for example, he set up a joint account in the amount of $500.00 for a niece, Betty Marie Little. In April, 1956, he established a trust account for Rena L. Ross, another niece, in the sum of $1,050.00. On April 18, 1960 he established a trust account for Russell and Martha Little of some $22,000.00 and on April 27, 1961, he established a trustee account for Archie Little and Dorothy Little of some $6,000.00. On Aug. 2, 1961, Fred Little set up two trust accounts, one of them for Russell and Martha Little of over $6,000.00 and one for Martha, alone, of $20,000. Significantly, perhaps, Fred Little reserved the right to revoke all of these accounts which he had set up, and all of them were revoked by him at one time or another.

The account upon which the plaintiff's claim is based here was first established on Aug. 2, 1961 by Fred Little as trustee for Esme Little, reserving the right of revocation in the following phrase: 'I reserve the right to revoke in whole or in part the trust hereby created by withdrawal or other notice to the bank during my lifetime.' On Oct. 4, 1961, this account had been increased to the amount of $28,103.20.

In the latter part of September, 1961, Fred Little entered the Mary Flectcher Hospital, in Burlington, for treatment of a cancerous condition of the prostate which proved incurable. He was released from the hospital on Oct. 2, 1961, and went to live with the defendants where he remained until his death on October 31, 1961. On Oct. 4, 1961, he requested the defendant, Martha Little, to drive him to the Burlington Savings Bank. At this time he revoked the trust account in the name of the plaintiff, Esme, and established the joint account in the names of the defendants. After his death, defendants transferred the joint account into a deposit in their two names alone and the plaintiff brought her action.

Plaintiff squarely raised the question of the competency of Fred Little to understand the nature of his acts on Oct. 4, 1961 in her complaint and she was entitled to a finding of fact upon this question. Despite her briefed contention to the contrary we think that such finding was made in No. 58 of the findings of fact:

'Plaintiff does not claim that Fred was non compos mentis or that he was suffering from senile dementia on Oct. 4, 1961, but she does claim that when he was taken to the hospital for the last time he was not of 'sound mind or oriented.' Rather, that he was in a weakened condition, physically and mentally, that he did not have sufficient capacity to understand the nature and effect of the transaction on Oct. 4, 1961. There is no believable evidence to this effect, and we cannot so find. On the contrary, the Court finds on Oct. 4, 1961 Fred knew what he was doing and did what he intended and desired to do. There was evidence that he possessed and retained his mental faculties to the last and the Court so finds.'

The plaintiff has attacked this finding on the ground that it is a 'negative' finding and not a positive one on the competency of Fred Little. But the finding is positive that 'Fred knew what he was doing and did what he intended and desired to do' and 'that he retained his mental faculties to the last.' This is an affirmative finding of Fred Little's competency to engage in the transaction here questioned. The Chancellor's statement that 'there was no believable evidence' that Fred Little did not have the capacity to understand the nature of his acts is a statement that in the trier's judgment the credible evidence did not produce a preponderance of evidence upon this subject sufficient for a finding to be made to this effect. Crossman v. Crossman, 124 Vt. ----, 197 A.2d 818; Strong v. Strong, 123 Vt. 243, 246, 185 A.2d 924.

Plaintiff's exception to the Chancellor's failure to find in accordance with her request that Fred Little was incompetent must, in view of the fact that we have decided that a finding was made that Fred Little was competent, be viewed as an exception to such finding. On an appeal to this Court for a review of findings on exceptions thereto a finding must stand if supported by any substantial evidence, although there may be inconsistencies, or even substantial evidence to the contrary. We must read the evidence in support of the findings, if reasonably possible, when considered as a whole. Cody Chevrolet, Inc. v. Royer, 123 Vt. 389, 392, 189 A.2d 554; In re Petition of Bolduc, 121 Vt. 20, 21, 146 A.2d 240. In such consideration we must have in mind that it is the trier of fact to whom is given the sole determination as to the weight of the evidence, the credibility of the witnesses, and the persuasive effect of the testimony. 12 V.S.A. § 2385; Crossman v. Crossman, supra; Gilbert v. Gilbert, 123 Vt. 200, 202, 185 A.2d 460.

Plaintiff offered evidence that Fred Little at one time seemed confused in counting out a sum of money, and that on another occasion he seemed to be mistaken on an education afforded a younger brother. Other testimony was to the effect that Fred was in great pain, and some fear was expressed among relatives that he might do away with himself.

The evidence of the defendants was that Fred Little remained in full possession of his faculties until his death. It was their testimony that Fred Little made all arrangements for the transfer of bank accounts on Oct. 4, 1961, without knowledge on the part of the defendants, that such transfer was to be made, or any suggestion to Fred that it be done.

The findings made it apparent that the Chancellor gave considerable weight to the testimony of Mr. Neil W. Whitman, an assistant treasurer of the Burlington Savings Bank, with whom Fred Little had transacted much of his bank business over ten or fifteen years, and with whom he made the transfer arrangements on Oct. 4th.

It was Whitman's testimony that on Oct. 4th he came to Martha Little's car, parked in front of the bank, to do business with Fred, because of Fred's physical weakness. He stated that Fred seemed 'normal', having in mind his past contacts with him, and told him that he wished to draw some cash from his account. Fred also stated he wanted to change the account to a joint one with Russell and Martha Little. Mr. Whitman explained to Fred Little the meaning of a joint account, in that any of the...