138 A. 905 | Conn. | 1927
The application, brought on July 31st, 1925, by Margaret A. Beach for the appointment of a conservator of the person and estate of her son, the appellant, alleged (a) that he resided in the town of Stratford, (b) that he had property therein, and (c) that by reason of mental derangement and physical *3 infirmities he had become and was then incapable of managing his affairs. On September 3d 1925, the Court of Probate, after a hearing, found that the allegations contained in the application were true and appointed the First National Bank of Bridgeport as conservator. Upon appeal, the Superior Court affirmed this decree.
The finding of the trial court, that the appellant was, at the time of the filing of the application and on the date of the order appointing the conservator, a resident of the town of Stratford, had property in that town, and had become and then was incapable of managing his affairs, fulfills the requirements of § 4884 of the General Statutes for the appointment of a conservator and supports the conclusion that the decree of the Court of Probate should be affirmed. Therefore the appellant, in order to prevail upon this appeal, must obtain such correction of the finding as will remove one or more of the above-mentioned findings of fact which are essential to support the judgment.
The finding, as made, sets forth none of the subordinate facts from which the ultimate facts of residence, possession of property, and incapability were found. As to the question of residence, the appellant requests the inclusion of a few circumstances bearing somewhat upon the matter of residence, but which, even if they were embodied in the finding, would not be sufficient to affect the conclusion that the appellant was a resident of Stratford, nor show that it was reached through, or involved, an error of law.
The only subordinate facts specifically pertaining to the possession of property, which are sought to be inserted in the finding and which appear to be undisputed, are that appellant had an automobile and some personal effects at the house of Helen B. Beach, his *4
wife, in Stratford. It appears, further, however, that under a trust established by the appellant's father he is entitled to the use and benefit of a fund yielding an income of considerable amount, the record showing that between January 1st, 1924, and September 18th, 1925, the payments by the trustees to him aggregated over $12,000. The right to receive this income is also property, and is to be regarded as having a situs in Stratford. Appellant's residence determines the court having jurisdiction, wherever the property may be located. Wentz's Appeal,
It is also sought to add to the finding that under the same trust the appellant's wife receives the same amount of income as the appellant, and neither she nor her family were dependent upon the appellant for support nor has any substantial support been furnished to them by him for many years. The finding of these facts would not, however, directly affect the ultimate facts upon which the judgment depends. No useful purpose would therefore be served by correcting the finding in this respect. Winestine v. RoseCloak Suit Co.,
Error is assigned in the refusal of the trial court to substitute for the finding (paragraph seven) that the appellant was incapable of managing his affairs, a paragraph (thirteen) of the draft-finding, stating that "the only evidence of his lack of capability in handling his own affairs was his refusal to abandon his daughter in New York and her mother, and in spending his income in their maintenance, and in the furthering of certain scientific investigations from which he derived no profit." The trial court is not required to make a finding of what evidence was offered upon a given point, *5
but of what facts were fairly established by the evidence upon such point. "If the complaining party deems the evidence insufficient to support the fact, he should ask that the finding be corrected by striking out such fact." Portland Water Co. v. Portland,
The appellant is, therefore, not entitled to any requested correction of the finding by the insertion of subordinate facts which would subvert the conclusions of the trial court as to the essential facts of residence, possession of property and incapability to manage the same.
Section 134 of the Rules (Practice Book, p. 272) provides that the finding shall "avoid the recital of evidence and all evidential matters, and be confined to a statement of those operative or ultimate facts which may be necessary for a clear understanding of the questions of law desired by counsel to be reviewed." Gilpatric
v. National Surety Co.,
In the present case, if the subordinate facts from which the conclusion as to residence was drawn were stated in the finding, this court would be in a position to determine whether those facts, after corrections, if any, are made, support the conclusion, or whether, on the other hand, the reaching of that conclusion involved an error of law. Likewise, a finding disclosing the salient facts from which the conclusion of incapability was drawn would have permitted a review of the only available question — whether the trial court, in reaching its decision on that point, committed some error of law. Unless such error be present, both residence and capability are questions of fact which it is peculiarly the province of the trial court to decide.Charter Oak Bank v. Reed,
The appellant, by his draft-finding and motion to correct, could have had all of the essential subordinate facts incorporated in the finding. Hayward v. Plant,
The appellant seeks, further, to attack the three constituent *7
conclusions of fact as not supported by the evidence, his claims in this respect, as summarized in the brief, being that "there is nothing in the record to justify the court in finding either that Beach was a resident, or had a domicil in Connecticut, or that he had sufficient property to justify the appointment of a conservator, or that he was incompetent and incapable of handling his own affairs." In effect we are invited to go to such of the evidence as the parties deemed material and which is printed in the record and retry the case. This, as we have consistently held, we cannot do. Hayward v. Plant, supra, p. 382, and cases cited. Moreover, we cannot correct the finding by striking out conclusions of fact if it appears that there was evidence from which the court below could have reasonably reached the conclusions complained of.Maley v. Hugo,
It does not appear that the situation or capacity of the appellant has materially changed since the trust became effective. Under this, the trustees are authorized to pay the income to the respective beneficiaries "at least quarter-yearly or at shorter intervals in the discretion of the trustees." The exhibits setting forth the payments made by the trustees to Beach after January 1st, 1924, show that they were of small amounts, usually $100 or less, at frequent intervals, and it is claimed that adequate supervision and restraint in the conduct of appellant's financial affairs have been or may be exercised by such administration of the trust, without the intervention of a conservator. While this is a relevant and perhaps weighty suggestion, it is by no means determinative of the question of the practical necessity or advisability of a conservatorship, and if it was advanced before the trial court, doubtless was given due consideration.
The finding discloses that for a number of years the appellant has spent the greater part of his time in New York City; the application for a conservator appears to have soon followed discovery, by the applicant, of the existence there of a girl whom the appellant recognized as his illegitimate daughter, to whose support and that of her mother he was contributing, and the possibility of whose legal adoption he was considering; and the evidence affords strong intimation of a purpose, *9 through the conservatorship, to compel the appellant to leave New York, abandon the girl and her mother and cease contributions to their support, and to come to and remain in Connecticut, by making compliance a condition of continued receipt of income. This, however, is a matter pertaining to the administration of the conservatorship, rather than one materially affecting its creation. It is to be assumed and expected that the Court of Probate, having control of such administration, will not countenance any attempt to make of it an instrument of oppression or restraint of the appellant's personal liberty of conduct, movement, or dwelling-place, or of coercion to repudiate legal or even moral obligations, beyond what is necessary to accomplish the purpose which the situation disclosed by the record would seem to require — that of safeguarding the resources of the appellant from the consequences of visionary promotions and speculations, misguided philanthropies, and wasteful expenditures.
Upon this record the judgment ratifying the decree of the Court of Probate must be affirmed.
There is no error.
In this opinion the other judges concurred.