Opinion
No. CV01-0812462S
April 16, 2003
MEMORANDUM OF DECISION
This is an appeal from probate, filed with the permission of the West Hartford Probate Court on November 27, 2001, by Joan Harland, a daughter and an heir at law of the deceased, Susan Harland. Joan Harland contests the probate court's allowance of claims submitted by Susan Harland's brother, Peter Harris and by caregiver, Harriette Von Dassel. The matter was tried to the court on February 13, 2003.
Harris submitted his claim against the Harland estate to recover $14,305.78 loaned by him to the deceased to pay her living expenses in the period before her death. Von Dassel submitted her claim and it was allowed in the reduced amount of $11,197.49 as compensation for daily care given to Harland in this same time period. Joan Harland appeals from the allowance of these amounts.
"When entertaining an appeal from an order or decree of a Probate Court, the Superior Court takes the place of and sits as the court of probate . . . In ruling on a probate appeal the Superior Court exercises the powers, not of a constitutional court of general or common law jurisdiction, but of a Probate Court . . . The function of the Superior Court in appeals from a Probate Court is to take jurisdiction of the order or decree appealed from and to try that issue de novo . . . Therefore, upon, `consideration of all evidence presented on the appeal which would have been admissible in the probate court, the superior court should exercise the same power of judgment which the probate court possessed and decide the appeal as an original proposition unfettered by, and ignoring, the result reached in the probate court.'" Kerin v. Stangle, 209 Conn. 260, 264 (1988) (citations omitted). Following these principles and Locke and Kohn, Connecticut Probate Practice § 213, the court considers that the burden of proof in this appeal is on those submitting the claims.
After hearing, the court finds the following facts as to the claim of Peter Harris. Harris is the brother of Susan Harland, who died in West Hartford on July 7, 2000. In January 1997, he became the attorney-in-fact for his sister, as she executed a power of attorney in his favor. She was suffering with a variant of Parkinson's disease at the time and had suffered financial difficulties.
In August 1997, Susan Harland's finances had deteriorated to the extent that Harris began to loan her money to help her meet living expenses and to pay her mortgage. The checks issued by Harris and the matching promissory notes signed by Susan Harland between August 1997 and February 1998 total $14,305.78.
In one instance where Harris paid Susan Harland $236.75 the only piece of evidence is a check and there is no matching note.
Susan Harland had cognitive difficulties during the year 1997, and her mental health gradually declined further in the subsequent years. In 1997, however, she was sufficiently aware of herself and her surroundings to be considered competent. It is true that Harris had told a Department of Social Services employee in 1997 that his sister had had a history of dementia for three years. At the same time Joan Harland testified that she knew her mother had "good and bad days" and that there were ways to spark her mother's memory. Joan Harland was never present when the promissory notes were signed. Susan Harland had visited Harris in California at the beginning of 1997, knew his family and had enjoyed being a tourist. Susan Harland's caregiver, Von Dassel, explained the notes to Susan Harland when they arrived from California periodically and Susan Harland understood what she was signing.
Joan Harland's first ground to reject Harris' claim is that Susan was mentally incompetent and therefore legally incapable of executing the notes in question, or agreeing to the sums loaned. While the overall burden of proof is on Harris as the claimant, because he proved that the loan in fact took place and the circumstances of Susan's capacity, the burden transferred to Joan Harland to demonstrate incapacity. This is the general rule for suits on notes; there is no difference in that it is Susan Harland's administrator that approved payment and is agreeing to payment in the probate court. "The controlling question is as to her mental capacity when she executed the note . . . at that very time and none other . . . The burden was on the defendant to prove by a fair preponderance of the evidence, [the debtor's] mental incapacity to execute the note in question . . . This the defendant has failed to do." (Citations omitted; quotation marks omitted.) Sikorsky Fed. Credit Union v. Ontko, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 90 0270119S (August 12, 1993, Belinkie, J.).
See also Jones v. Winstead, 120 S.E. 89 (N.C. 1923), a suit on a note by a nephew against the estate of his uncle. The administrators defended on the ground that the uncle lacked sufficient mental capacity. The court stated: "There is . . . a rebuttable presumption that the promissor was sane at the time of the execution of the note, and on that question the burden of showing the contrary, as a general rule, is upon the defendant or the person alleging it." While the administrators in Jones proved that the deceased had been institutionalized in the past, they failed to show any recent hospitalization for mental illness, and there was proof that he was successfully in control of his business affairs.
Here, as found above, the evidence was that Susan had periods of incapacity, but in 1997 she still had sufficient capacity to execute the notes on the dates in question and to agree to the repayment of the loans. Joan Harland has not proved otherwise. Therefore, the court rejects the first ground to deny Harris' claim.
Joan Harland's second reason to disapprove the claim is that Harris had control of Susan Harland's affairs from 1997 until her death and in that capacity received funds due to Susan Harland. Joan Harland points to an accounting filed by Harris with the probate court (Exhibit 3) to contend that Harris cannot account for approximately $14,000 of Susan Harland's receivables. According to Joan Harland, Harris should not be paid further from the estate without an explanation of this missing amount.
The court has reviewed the items raised by Joan Harland from the accounting to indicate Harris' mismanagement and does not find that there is sufficient support for her position. In any event the sole issue before the court, in its appellate role, is whether the claim itself should be allowed, not whether Harris' accounting, already approved by the probate court, should again be scrutinized. Goodman v. Bank of Boston, 27 Conn. App. 333, 342 (1992) (single issue in appeal is whether claim ought to be allowed against the estate). This does not mean that any claims against Harris for inadequate management of the estate might not still be pursued by the administrator. See Tolles' Appeal, 54 Conn. 521, 524 (1887); Di Iorio v. Cantone, 140 A. 913 (R.I. 1928) (in foreclosure action, administrator had duty to consider equitable defenses which intestate might have against the plaintiff holder of the note). For the foregoing reasons the claims of Harris are allowed, including attorneys fees authorized by the notes in the amount of $4,123.17, and the appeal of Joan Harland, against Harris, is dismissed.
The attorneys fees claim may now be raised in this court. See Klein v. Feinmark, 22 Conn. Sup. 242, 246 (1960).
The following facts are found regarding the Von Dassel claim. In 1996, Susan Harland was in need of care and she turned to her friend Von Dassel to be of assistance. Von Dassel helped her obtain her meals and drove her to appointments. Joan Harland was in agreement with this arrangement, especially when she went to Europe to live in the later part of 1996 and needed a caregiver for her mother.
After proceeding with this arrangement for some time, in 1997 Susan Harland and Von Dassel agreed that Susan Harland would move to Von Dassel's home in West Hartford. Susan Harland lived in Von Dassel's home and received her services for the next three years until her death. Susan Harland paid a monthly fee after she moved into Von Dassel's home.
In 1996 and again in 1997, Harris, acting on behalf of his sister, wrote letters (Exhibits C and D) to Von Dassel offering to pay her additional amounts for the full-time care she was providing. These letters are the basis for Von Dassel's claim of $11,197.49.
Joan Harland disputes the Von Dassel claim first on the ground that Harris letters were written when Harris was without authority to bind his sister, or her estate. However, the first letter was written in 1996 while Susan Harland was sufficiently competent and actively cooperating with both Harris and Joan Harland. There was apparent authority for Harris to contract with Von Dassel. See Christensen v. Bic Corporation, 18 Conn. App. 451, 454 (1982) (may imply contract from words or deeds of parties).
The second letter was written after Harris had obtained his power of attorney. There is no reason in this record to doubt that Harris had the authority to contract with Von Dassel in 1997 under this power of attorney. Bank of Montreal v. Gallo, 3 Conn. App. 268, 273 (1985). As an agent of Susan Harland, Harris had actual and apparent authority to bind his principal. Fox Piano Co. v. Bennett, 96 Conn. 448, 450 (1921).
The virtually identical case of Devita v. Sirico, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 01 0448826S (March 13, 2002, Arnold, J.) ( 31 Conn.L.Rptr. 511), confirms these points. There the court allowed, on a de novo review, a claim for services, holding as follows: first, that the claimant had to establish the existence of the agreement by clear and satisfactory proof; second, that a contract may be implied in fact from a mutual understanding that the services would be paid; and third, that where there is no blood relationship between the claimant and the decedent, "there is a strong implication that services rendered upon request and accepted voluntarily, are to be paid for." The court concludes, after reviewing the evidence, that Von Dassel has met these three points in this case.
Joan Harland also claims that Von Dassel did not prove that the value of her services were reasonable. The court disagrees. As the court in Devita indicates, the reasonableness of a claim for services is judged by "what the decedent `would have been compelled to pay if [s]he had gone out into the open market to secure somebody else.' Graybill v. Plant, supra, 138 Conn. 401." Here there is evidence that at one time in 1997, Joan Harland, who had recently returned from Europe, had to engage a substitute for Von Dassel for a few days at the rate of $100 per day. Von Dassel's claim, based upon the hours she worked between 1996 and 2000, amounts to $8.00 per day in addition to the $65 per day she received under her rental agreement. This appears to be reasonable compensation for the demanding task of caring for Susan Harland as she became increasingly more handicapped.
Joan Harland asks that the amount sought by Von Dassel be reduced on a similar set-off theory to that raised in the Harris claim. She states that Von Dassel has already been compensated in the amount of $5,081 and generally misapplied the monthly fee that she was receiving. For one period of time, Joan Harland notes that Susan Harland attended daycare and was not under Von Dassel's care for some day time hours. Von Dassel proved, however, that the payment of $5,081 was for expenses that Von Dassel made to adapt her house to Susan Harland's medical conditions and her explanation has been adopted by the probate court.
Further, the court will not engage in an off-set determination regarding issues unrelated to the claim at issue. Von Dassel fully engaged in the work which is the basis of the claim and is entitled to payment. See Zanoni Executrix v. St. Patrick's Mannor, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. CV91 0388328 (June 25, 1991, Wagner, J.) (denying a set-off).
The court therefore allows the Von Dassel claim in the amount of $11,197.49, and dismisses Joan Harland's appeal therefrom.
So ordered.
Henry S. Cohn, J.