author: Callahan, J.

text:
    State of Connecticut v. Lawrence D. McMurray
    (13743)
    Peters, C. J., Callahan, Glass, Borden and Santaniello, Js.
    Argued November 6, 1990
    decision released January 22, 1991

      ToddD. Fernow, with whom were JohnP. Newman and Robyn L. Sondak, certified legal interns, and, on the brief, Michael R. Sheldon, for the appellant (defendant).

      Harry Weller, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and John Malone, senior assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, Lawrence D. McMurray, was charged in a substitute short form information with one count of conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a (a), one count of attempted murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a (a), one count of acting as an accessory to assault in the first degree in violation of General Statutes §§ 53a-8 and 53a-59 (a) (1), and one count of acting as an accessory to kidnapping in the first degree in violation of General Statutes §§ 53a-8 and 53a-92 (a) (2) (A) and (B). In response to the defendant’s motion for a bill of particulars, the state filed a substitute long form information and bill of particulars charging the defendant with the same offenses.

A jury acquitted the defendant of conspiracy to commit murder and attempted murder, but convicted him as an accessory to both assault in the first degree and kidnapping in the first degree. He was sentenced to twenty years imprisonment for the assault conviction and twenty-five years imprisonment for the kidnapping conviction, with the sentences running consecutively, for a total effective term of forty-five years. The defendant appealed to this court pursuant to General Statutes § 51-199 (b) (3).

The defendant claims that he is entitled to a new trial because: (1) his convictions as an accessory to both assault in the first degree and kidnapping in the first degree must be set aside because the substitute long form information failed to charge him with an essential element of each of those offenses; (2) the trial court’s references to the information in its instructions to the jury made it reasonably possible that the jury was misled as to the required mental state for those crimes; and (3) the trial court improperly denied him access to a psychiatric report concerning the victim. We reject each of these claims and affirm the judgment of the trial court.

The charges in this case arose out of an attack perpetrated on Charles Gluck on January 16, 1987. The jury could reasonably have found that, in the fall of 1986, Linda Gluck, the victim’s wife, began using cocaine with the defendant. In December, 1986, Linda and the victim agreed to allow the defendant to administer a self-styled “step-down” program designed to reduce gradually Linda’s dependence on the drug. On January 13, 1987, the victim and his wife had a heated argument in their home concerning her continued addiction to cocaine, during which the victim threatened to strike his wife and to take their children. The defendant, who was present during this argument, then threatened the victim, who responded by ordering the defendant to leave. Because the victim and his wife were worried by the defendant’s threat, Linda pursued the defendant and persuaded him to return and reconcile his differences with her husband.

When the victim awoke early the next morning to go to work, the defendant, who had spent the night at the Gluck home, told him that he had chased two men whom he had seen tampering with the propane tanks at the rear of the house. Because the victim’s position with the Navy required him to be gone overnight, it was decided that Linda and the two children would stay at the defendant’s home in West Hartford until the defendant investigated the incident involving the propane tanks.

Linda and the children stayed with the defendant on January 14 and 15,1987. On January 14, 1987, Linda overheard the defendant, who was talking on the telephone, say, “we have to do something about Charlie.” On the same day the defendant discovered Linda calling her husband to warn him that he was in danger. The next day he persuaded her to call the victim back to tell him that everything was fine.

On January 15, the defendant spent a portion of the day trying to locate Arthur Salley. Linda feared that the defendant had asked Salley to harm her husband. At approximately 2 a.m. on January 16, the victim, armed with a shotgun, came to the defendant’s home in order to pick up his wife and children. Arthur Salley and his brother, Howard Salley, arrived at the defendant’s home shortly thereafter. Inside the home, the defendant handcuffed the victim when the victim’s attention was diverted. As the defendant did so, the victim jerked backwards and fell unconscious when the handcuffs hit him in the face. Arthur, with the assistance of his brother, put the victim into Arthur’s motor vehicle.

After the defendant told Arthur that the victim’s car had to be disposed of, Arthur drove off in his vehicle with the victim while Howard followed in the victim’s car. During this ride Arthur told the victim, who was semiconscious, that his wife wanted to stay where she was, and that he was going to teach the victim a lesson for interfering with the wrong people. After leaving the victim’s car in a parking lot, Howard joined his brother and they drove the victim to Keney Park in Hartford where the victim tried to escape when he was taken out of the vehicle. Arthur, however, caught the victim and hit him three times with a metal “j-hook,” inflicting a blow that pierced his skull. The two brothers then left the victim lying in the park. The victim subsequently managed to revive sufficiently to get help at a nearby apartment building. As a result of the assault, the victim suffered serious injuries, including damage to the area of the brain that controls speech.

I

The defendant argues that counts three and four of the substitute long form information failed to charge an essential element, namely the requisite mental state, of the offenses of accessory to first degree assault and accessory to first degree kidnapping, and that this alleged omission violated his right to be informed of the nature and cause of the accusation against him guaranteed under the sixth and fourteenth amendments to the United States constitution and article first, § 8 of the Connecticut constitution. The defendant asserts that these counts failed to charge that he, personally, had to possess the specific intent required for commission of assault in the first degree and kidnapping in the first degree. We disagree.

The underlying purpose of the constitutional right to be informed of the nature and cause of a criminal charge is to inform “the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise” and to make the charge “definite enough to enable [the defendant] to plead his acquittal or conviction in bar of any future prosecution for the same offense . . . .” State v. Sumner, 178 Conn. 163, 168, 422 A.2d 299 (1979), citing Russell v. United States, 369 U.S. 749, 82 S. Ct. 1038, 8 L. Ed. 2d 240 (1962). The defendant does not claim that the alleged failure by the state to charge an essential element of these offenses caused any surprise or prejudiced his defense in any way, nor does he contend that the information was insufficient for double jeopardy purposes. He does contend, however, that because of the defect in the information, the trial court lacked jurisdiction to impose a valid judgment, regardless of whether there was any prejudice. Although the defendant raises this claim for the first time on appeal, it is reviewable pursuant to Practice Book § 811.

When reviewing a claim, not raised prior to the verdict, that an information fails to charge all the essential elements of an offense, we must construe the information liberally in favor of the state. See Hagner v. United States, 285 U.S. 427, 433, 52 S. Ct. 417, 76 L. Ed. 861 (1932); United States v. Hooker, 841 F.2d 1225,1228-29 (4th Cir. 1988); United States v. Previte, 648 F.2d 73, 80 (1st Cir. 1981); United States v. Fistel, 460 F.2d 157,161 (2d Cir. 1972). Under the applicable standard of review, a conviction based upon a challenged information is valid unless the information is “ ‘so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had.’ ” United States v. Fistel, supra, 161, quoting United States v. Thompson, 356 F.2d 216, 226 (2d Cir. 1965), cert. denied, 384 U.S. 964, 86 S. Ct. 1591, 16 L. Ed. 2d 675 (1966).

Because the defendant makes the same argument in alleging that both the third and fourth counts of the information fail to contain an essential element of the charged offenses, namely specific intent,* *** and because both counts are similarly worded, our analysis of the third count will also dispose of the defendant’s claim with respect to the fourth count. The relevant portion of the third count states that “Lawrence D. McMurray, acting with the mental state required for commission of the crime of ASSAULT IN THE FIRST DEGREE, did solicit, command, importune and intentionally aid Arthur K. Salley and others to engage in conduct which constituted the crime of ASSAULT IN THE FIRST DEGREE in that the said Lawrence D. McMurray or others, with intent to cause serious physical injury . . . caused such injury . . . by means of a dangerous instrument . . . .’’(Emphasis added.) The defendant focuses on the emphasized language in arguing that the information must be interpreted to state that the defendant could be convicted as an accessory to assault even if he did not personally intend to cause serious physical injury to the victim, as long as one of the principals possessed that intent.

The defendant’s argument is without merit. He concedes that in order to prevail on this claim he must demonstrate that his interpretation is the only reasonable interpretation of the information. This clearly is not the case. The first part of the third count of the information, incorporating the language of the accessory statute, § 53a-8, states that the defendant was “acting with the mental state required for commission of the crime of ASSAULT IN THE FIRST DEGREE.” The portion of the information on which the defendant focuses describes only the conduct of the principals and the requisite mental state for assault in the first degree. A reasonable interpretation of the information read as a whole is that the mental state referred to in the first portion of the information is the intent to cause serious physical injury, and that the defendant personally possessed such intent. The defendant’s hyper-technical argument asks this court to ignore the relevant standard of review by reading a selected portion of the information in isolation from the information as a whole. The tenuousness of the defendant’s claim that his interpretation is the only reasonable one is highlighted by the failure of either the defendant or the trial court to raise this issue at any point during the trial.

Furthermore, the defendant concedes that a finding that the third and fourth counts are ambiguous on the requisite mental state is insufficient for him to prevail. See United States v. Hooker, supra, 1228-29; United States v. Fistel, supra, 161; United States v. Thompson, supra, 226. Although it appears to this court that the only sensible interpretation of the language of the third and fourth counts of the long form information is that the defendant was required to possess the specific intent for the charged offenses, we need not so hold. Even if we assume, arguendo, that the language of the counts in question is ambiguous as to the element of intent, we cannot say that, construed liberally, the information fails to charge the intent element of assault in the first degree and kidnapping in the first degree. See United States v. Fistel, supra; United States v. Thompson, supra. The defendant cannot prevail on this issue because, at best, his argument amounts to a claim that the information was “unskillfully or imprecisely drafted,” rather than a claim that the information “completely omitted to aver an essential element of the offense[s] charged.” State v. Coleman, 167 Conn. 260, 278, 355 A.2d 11 (1974) (Bogdanski, J., concurring).

II

The defendant’s second claim of error is related to his first. He asserts that the trial court’s references to the information in its instructions to the jury concerning the third and fourth counts made it reasonably possible that the jury was misled as to the mental state required for a conviction on those counts. Because the defendant first raises this claim on appeal, this claim would ordinarily not be reviewable under the provisions of Practice Book § 852. The defendant’s contention, however, that the court’s instructions failed to inform the jury adequately of all the essential elements of the crimes charged raises the possibility of a due process violation affecting the fairness of the trial. We have held that such unpreserved constitutional claims are reviewable on appeal, but we have limited the scope of such review because “[d]ue process is not to be regarded as a giant constitutional vacuum cleaner which sucks up any claims of error which may occur to a party upon microscopic examination of the trial record.” State v. Kurvin, 186 Conn. 555, 564, 442 A.2d 1327 (1982). Our review of such claims is limited to determining whether, “considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled.” State v. Zayas, 195 Conn. 611, 617, 490 A.2d 68 (1985); State v. Sinclair, 197 Conn. 574, 581, 500 A.2d 539 (1985); State v. Kurvin, supra, 565.

The trial court’s instructions to the jury included a thorough review of the intent element under an accessory theory of liability for both the offenses of assault in the first degree and kidnapping in the first degree. During the course of the charge, the trial court referred to the substitute long form information five times and told the jury that the information would be available for its use during its deliberations. The trial court also told the jury that any questions concerning the elements of the offenses should be resolved by referring first to the information because it contained the language of the statutes, but if questions remained, the court could be asked to reread the portions of the charge outlining the elements.

Shortly after beginning its deliberations, the jury requested reinstruction on the elements of the offenses, and the court once again provided a correct statement of all the essential elements of each of the crimes. After being reinstructed on the elements, the jury asked to have the elements in writing. The trial court stated that it could not provide the elements in writing, but indicated that the information contained the elements of the offenses as set forth in the statutes and reminded the jury that it could ask the court to reread the instructions on the elements at any time. The jury asked no further questions concerning the elements of the offenses and received no further instructions before returning its verdict.

The defendant concedes that the trial court properly instructed the jury on each of the essential elements of the third and fourth counts, including intent, both in its charge and in its response to the jury’s request to be reinstructed on the elements of the offenses. He argues, however, that the trial court’s references to the information made it reasonably possible that the jury convicted the defendant on the third and fourth counts without finding that the defendant personally possessed the specific intent required to commit those offenses. We disagree.

We first note that this claim is dependent upon our finding that the information was deficient concerning the element of intent required for conviction of the third and fourth counts. If we were to find that no reasonable juror could have been misled by the information as to the requisite intent, the defendant could not prevail on this claim. As we noted earlier, it appears to this court that there is no ambiguity in the information, but once again we need not rely on this ground. If it is assumed, arguendo, that the information was ambiguous concerning the requisite mental state for commission of the offenses of accessory to assault in the first degree and kidnapping in the first degree, any ambiguity was cured by the trial court’s twice having instructed the jury properly on the intent element of these crimes. A trial court’s main and supplemental instructions to the jury must be reviewed as a whole. State v. Cannon, 185 Conn. 260, 269, 440 A.2d 927 (1981); State v. Reed, 174 Conn. 287, 308, 386 A.2d 243 (1978). Reviewing the instructions as a whole, we conclude that it was not reasonably possible that the jury was misled on the requisite intent element of the third and fourth counts.

Ill

The defendant also claims that his right to confront the witnesses against him guaranteed by the sixth and fourteenth amendments to the United States constitution and article first, § 8 of the Connecticut constitution was violated by the trial court’s having denied him access to a psychiatric report concerning the victim. We disagree.

This court has noted repeatedly the need to balance a witness’ statutory privilege to keep psychiatric records confidential against a defendant’s rights under the confrontation clause. See, e.g., State v. Herring, 210 Conn. 78,108-109, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989). The procedure for determining whether a defendant should be granted access to the psychiatric records of a witness is well established. “If, for the purposes of cross-examination, a defendant believes that certain privileged records would disclose information especially probative of a witness’ ability to comprehend, know or correctly relate the truth, he may, out of the jury’s presence, attempt to make a preliminary showing that ‘there is a reasonable ground to believe’ that the failure to produce the records would likely impair his right to impeach the witness. . . . If in the trial court’s judgment the defendant successfully makes this showing, the state must then obtain the witness’ permission for the court to inspect the records in camera. A witness’ refusal to consent to such an in camera inspection entitles the defendant to have the witness’ testimony stricken. . . .

“Upon inspecting the records in camera, the trial court must determine whether the records are especially probative of the witness’ capacity to relate the truth or to observe, recollect and narrate relevant occurrences. ... If the court determines that the records are probative, the state must obtain the witness’ further waiver of his privilege concerning the relevant portions of the records for release to the defendant, or have the witness’ testimony stricken. If the court discovers no probative and impeaching material, the entire record of the proceeding must be sealed and preserved for possible appellate review. . . . Once the trial court has made its inspection, the court’s determination of a defendant’s access to the witness’ records lies in the court’s sound discretion, which we will not disturb unless abused.” (Citations omitted.) State v. D’Ambrosio, 212 Conn. 50, 58-59, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990).

The only psychiatric record at issue in this appeal is a report concerning a psychiatric consultation by the victim on March 26,1987, one day prior to the victim’s giving a written statement to the police concerning the events of January 16,1987. Because the victim could not remember the general purpose of this consultation, the trial court concluded that an in camera inspection of the psychiatric report was necessary. After obtaining the victim’s permission, the court reviewed the report and found that “there is nothing which either was said by the witness, Mr. Gluck, nor anything indicated by the opinion to interfere with his giving evidence in this case.”

Our review of the psychiatric record at issue leads us to conclude that the trial court did not abuse its discretion in denying the defendant access to this record because it does not contain information that is especially probative of the victim’s “ability to comprehend, know or correctly relate the truth.” State v. D Ambrosio, supra, 58. On direct examination the victim testified that during his hospitalization immediately after the assault his memory of the incident was limited. He also testified that his recollection of the assault was sketchy until several weeks after the incident when he was watching a movie and the events came back to him “like one continuous film.” In addition to noting that the trauma he suffered upon remembering these events forced him to return to the hospital, the victim also described the mental impairments he suffers as a result of the assault, including his difficulty in expressing his thoughts and his memory problems. On cross-examination of the victim, the defendant was able to question the victim fully about the circumstances surrounding his recollection of the assault, and the victim denied any suggestion that either the police or his wife had helped him in formulating his memory of the incident. After reviewing the psychiatric report in question, we conclude that the report would not have added weight to the defendant’s extensive cross-examination of the victim and that the trial court did not abuse its discretion in denying the defendant access.

The judgment is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-8. criminal liability for acts of another. A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”
      General Statutes § 53a-59 (a) (1) provides: “assault in the first degree: CLASS B felony, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.”
      General Statutes § 53a-92 provides in pertinent part: “kidnapping in the first degree, (a) A person is guilty of kidnapping in the first degree when he abducts another person and when ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually; or (B) accomplish or advance the commission of a felony ....
      “(b) Kidnapping in the first degree is punishable as a class A felony.”

       General Statutes § 51-199 (b) (3) provides in pertinent part: “The following matters shall be taken directly to the supreme court ... (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years.”

       A j-hook is an iron bar bent into the shape of a hook. It is used in towing cars and trucks.

       Arthur Salley pleaded guilty to the crimes of assault in the first degree and kidnapping in the first degree.

       The third count of the substitute long form information provided: “And the said Attorney further accuses the said Lawrence D. McMurray of ASSAULT IN THE FIRST DEGREE and charges that in the vicinity of 44 Vine Hill Road within the Town of West Hartford, on or about the 15th and 16th days of January, 1987, the said Lawrence D. McMurray, acting with the mental state required for commission of the crime of ASSAULT IN THE FIRST DEGREE, did solicit, command, importune and intentionally aid Arthur K. Salley and others to engage in conduct which constituted the crime of ASSAULT IN THE FIRST DEGREE in that the said Lawrence D. McMurray or others, with intent to cause serious physical injury to Charles Gluck of Volunto wn, caused such injury to the said Charles Gluck by means of a dangerous instrument, which occurred in the vicinity of 44 Vine Hill Road within the Town of West Hartford and in the vicinity of Keney Park within the City of Hartford during the early morning hours of the 16th day of January, 1987, in violation of Sections 53a-8 and 53a-59 (a) (1) of the General Statutes.”
      The fourth count of the substitute long form information provided: “And the said Attorney further accuses the said Lawrence D. McMurray of KIDNAPPING IN THE FIRST DEGREE and charges that in the vicinity of 44 Vine Hill Road within the Town of West Hartford, on or about the 15th and 16th days of January, 1987, the said Lawrence D. McMurray, acting with the mental state required for commission of the crime of Kidnapping in the First Degree, did solicit, command, importune and intentionally aid Arthur K. Salley and others to engage in conduct which constituted the crime of Kidnapping in the First Degree in that the said Lawrence D. McMurray or others abducted Charles Gluck of Volunto wn and restrained the said Charles Gluck with intent to inflict injury upon him and accomplish the commission of a felony, which occurred in the vicinity of 44 Vine Hill Road within the the [sic] Town of West Hartford and in the vicinity of Keney Park within the City of Hartford during the early morning hours of the 16th day of January, 1987, in violation of Sections 53a-8 and 53a-92 (a) (2) (A) [and] (B) of the General Statutes.”

       Because the defendant does not provide a separate analysis of his rights under the Connecticut constitution, we shall limit our consideration of this issue to the defendant’s rights under the federal constitution. State v. Flanders, 214 Conn. 493, 500 n.4, 572 A.2d 983 (1990); State v. Mercer, 208 Conn. 52, 67 n.9, 544 A.2d 611 (1988).

       Because we conclude that the third and fourth counts of the information did not fail to charge an essential element of these offenses, we do not consider whether a trial court would have jurisdiction if a substitute long form information did not allege all the essential elements of a crime, but did include a citation to the relevant statute, and if the defendant is not prejudiced by this omission. Compare State v. Roque, 190 Conn. 143, 156, 460 A.2d 26 (1983) (defendant must demonstrate prejudice to challenge information); State v. Coleman, 167 Conn. 260, 280-81, 355 A.2d 11 (1974) (Bogdanski, J., concurring) (nonprejudicial failure to charge intent element in supplemental bill of particulars does not deprive court of jurisdiction where short form information itself is not defective).

       “[Practice Book] Sec. 811. —time for making pretrial motions or REQUESTS
      “Unless otherwise provided by these rules or statute, all pretrial motions or requests shall be made not later than ten days after the entry of a plea in the court where the case will be tried, or, for good cause shown, at such later time as the judicial authority may fix. However, defenses and objections alleging lack of jurisdiction over the offense charged or failure of the indictment or information to charge an offense may be raised by the defendant or noticed by the judicial authority at any time during the pendency of the proceedings.”

       To be convicted under the criminal accessory statute, General Statutes § 53a-8, the defendant must be found to have acted with the mental state required for commission of the underlying offense. In order to commit assault in the first degree under General Statutes § 53a-59 (a) (1), one must act with the intent to cause serious physical injury to another person. To commit kidnapping in the first degree under General Statutes § 53a-92 (a) (2) (A) and (B), as charged in the information, one must act with the intent to inflict physical injury on the person abducted and to accomplish the commission of a felony.

       We do not address the state’s argument that the reference in the substitute long form information to the relevant statutes under which the defendant was charged satisfies the requirement that the information include all the essential elements of the offenses. See United, States v. Hooker, 841 F.2d 1225,1227-28 (4th Cir. 1988) (noting that a majority of the United States Circuit Courts of Appeal and a majority of the states have ruled that a mere statutory citation in the indictment or information does not cure a failure to allege all the essential elements of a crime); compare State v. Coleman, 167 Conn. 260, 269-70, 355 A.2d 11 (1974) (statutory citation in short form information found sufficient to inform defendant of intent element of offense where bill of particulars was alleged to have omitted that element).

       “[Practice Book] “Sec. 852. necessity foe requests to charge and EXCEPTIONS
      “The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.”

       In State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), we held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.)
      The state asserts that the merits of this claim are not reviewable under the first prong of Golding because the record does not indicate whether the jury was confused about the requisite intent. Because the relevant issue is whether it is reasonably possible that the jury was misled; State v. Sinclair, 197 Conn. 574, 581, 500 A.2d 539 (1985); our inquiry is an objective one and there is no need for the record to provide evidence that the jury actually was confused in order for us to review the claim. The record, which includes the trial court’s charge to the jury, the jury’s questions, and the court’s responses to these questions, is adequate for review.
      The state also argues that this claim is not reviewable because it is not of constitutional magnitude. Because the “reasonable possibility” test governs whether there is a due process violation, we cannot determine whether the claim is of constitutional magnitude without examining the merits. We therefore focus on the third Golding requirement, namely, whether there is a clear constitutional violation that deprived the defendant of a fair trial.

       The defendant has not provided a separate analysis of this claim under the Connecticut constitution, and therefore we consider only his federal constitutional claim. See footnote 6, supra. Furthermore, we do not address whether a defendant’s right to discredit witnesses through the use of the their psychiatric records is derived from the confrontation clause of the sixth amendment, the due process clause of the fourteenth amendment, or the due process or confrontation clauses of the Connecticut constitution. See State v. D'Ambrosio, 212 Conn. 50, 57 n.5, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990).

       General Statutes § 52-146e (a) provides in pertinent part that, with certain exceptions not applicable in this case, “[a]ll communications and records as defined in section 52-146d shall be confidential . . . .” General Statutes § 52-146d (2) provides in pertinent part that “ ‘[communications and records’ means all oral and written communications and records thereof relating to diagnosis or treatment of a patient’s mental condition between the patient and a psychiatrist . . .

       The defendant also sought access to psychiatric records concerning consultations while the victim was recuperating at Bethesda Naval Hospital in Maryland in February and March, 1987, and a consultation in Connecticut in May, 1987. The trial court denied him access to these records because it found that the defendant had failed to make a preliminary showing that there was a reasonable ground to believe that the denial of access would impair his right to impeach the witness. The defendant has not appealed this ruling.

       The defendant claims that the “abuse of discretion” standard does not apply to this case because he asserts that the trial court applied the wrong standard in determining whether to grant him access to the record in question. The defendant contends that the trial court’s statement that “there is nothing which either was said by the witness, Mr. Gluck, nor anything indicated by the opinion to interfere with his giving evidence in this case” (emphasis added) indicates that the court reviewed this record in terms of what information it provided on the victim’s competence rather than whether the record reflected on the victim’s ability to comprehend, know or relate the truth. We disagree.
      Although the trial court’s conclusion could have been stated in more legally precise terms, our review of the record reveals that the trial court was well acquainted with the procedures and standards to be applied in determining whether to grant a defendant access to psychiatric records. Furthermore, we note that the defendant failed to object when the court issued its finding in these terms and thereby contributed to any lack of clarity in the record.


source: Caselaw Access Project

author: Hull, J. F.X. Hennessy, J.,

license: Public Domain

text:
    Connecticut National Bank and Trust Company v. Donald W. Chadwick et al.
    (14035)
    (14036)
    Callahan, Glass, Hull, Borden and P. X. Hennessy, Js.

      Argued November 2, 1990
    decision released January 22, 1991

      Ralph G. Elliot, with whom, on the brief, was William F. L. Rodgers, for the appellants in the first appeal, appellees in the second appeal (defendant Heather Webb Fickes Foote et al.).

      Wesley W. Horton, with whom was Kimberly A. Knox, for the appellants in the second appeal, appellees in the first appeal (named defendant et al.).

      Thomas J. Groark, Jr., with whom were Hyacinth Douglas-Bailey and, on the brief, Michael W. Elsass and Ruth A. Kurien, for the appellees in both appeals (defendant Donald G. Fickes et al.).
   Hull, J.

The dispositive issue in these consolidated appeals is whether the adopted grandchildren of Edwin Stanton Fickes, the testator, are included within the term “grandchildren” as used in the testator’s will and, therefore, beneficiaries of a trust created by the will. The trial court found that Donald G. Fickes and Jackson W. Fickes (adopted grandsons), twin boys adopted by the testator’s son, Charles Fickes, before the testator’s death, were entitled to share in the trust assets along with the the testator’s four natural grandchildren, but that Barbara Ann Fickes Lyttle and Heather Webb Fickes Foote (adopted granddaughters), adopted by Charles long after the testator’s death, were not so entitled. We conclude that all of the adopted grandchildren are included within the meaning of the word “grandchildren” as used in the testator’s will. Accordingly, we affirm that portion of the judgment of the trial court including the adopted grandsons in the trust distribution and reverse that portion of the judgment excluding the later adopted granddaughters.

The factual and procedural background of the cases as found by the trial court and asserted by the parties is not in dispute. Edwin Stanton Fickes, the testator, died a resident of Washington on December 19,1943. He left a will dated November 19,1940, that provided for the creation of a separate trust upon his death. The will further provided that upon the death of the testator’s last surviving child, one half of the trust property was to be distributed to Rensselaer Polytechnic Institute and the other half of the trust property distributed “in equal portions between [the testator’s] grandchildren then living.”

At the time of death of the testator’s last surviving child, there were four biological grandchildren of the testator then living, Donald W. Chadwick and Marguerite Chadwick, children of the testator’s daughter, Harriet Fickes Chadwick, and Mary Gord Beimfohr-Zimm and Martha Bennett Piccirilli, children of the testator’s son, George Jackson Fickes. In addition, there were four adopted grandchildren living. Donald George Fickes and Jackson Webb Fickes had been adopted by the testator’s son, Charles Fickes, on June 22, 1942, prior to the testator’s death. Barbara Ann Fickes Lyttle and Heather Webb Fickes Foote had been adopted by Charles on June 23,1962, and June 25, 1965, respectively, subsequent to the testator’s death.

The plaintiff, Connecticut National Bank and Trust Company, as trustee, brought a declaratory judgment action in the Superior Court seeking a determination of whether the testator’s adopted grandchildren were entitled to share in the trust distribution. On December 6,1989, the trial court found that the testator had intended to include his adopted grandsons as “grandchildren” within the meaning of his will and, therefore, that they were entitled to share in the trust distribution. On the other hand, the court concluded that because the testator could not have intended to include his adopted granddaughters as “grandchildren,” they were not entitled so to share.

The adopted granddaughters appealed the judgment to the Appellate Court. The natural grandchildren also appealed the judgment insofar as it found that the adopted grandsons were entitled to share in the trust distribution. We subsequently transferred the appeals to this court pursuant to Practice Book § 4023.

Based upon the various claims of the three parties in these appeals, the issues for our resolution are whether: (1) the adopted grandchildren of the testator are within the meaning of the term “grandchildren” as used by the testator in his will and thus entitled to share in the trust distribution; (2) the trial court improperly admitted postexecution evidence in order to determine the testator’s intent at the time he executed his will; and (3) the trial court improperly admitted two letters under the business records exception to the hearsay rule.

I

“Significantly, the common law presumed that an adopted child is not within the intended bounty of a settlor who, as a nonadopting parent, is a stranger to the adoption. Mooney v. Tolles, 111 Conn. 1, 9, 149 A. 515 (1930); Middletown Trust Co. v. Gaffey, 96 Conn. 61, 67-68, 112 A. 689 (1921).” Schapira v. Connecticut Bank & Trust Co., 204 Conn. 450, 455, 528 A.2d 367 (1987). In 1959, the legislature enacted Public Act No. 106, the predecessor to General Statutes § 45-64a, which reversed this common law presumption; it expressly restricted the application of the act, however, to any will or trust instrument executed after October 1,1959. Since the will of the testator was executed on November 19,1940, the common law presumption applies in this case. Connecticut Bank & Trust Co. v. Coffin, 212 Conn. 678, 686-87, 563 A.2d 1323 (1989).

“[Cjommon law presumptions do not invariably govern interpretation of the terms of a will. Because the touchstone of trust interpretation is the intent of the settlor, the presumptions in favor of ancestral blood give way when an intent to include adoptees ‘definitely appears from a reading of the instrument in light of the circumstances surrounding the settlor at the time of execution.’ Connecticut Bank & Trust Co. v. Bovey, 162 Conn. 201, 206, 292 A.2d 899 (1972); see also Connecticut Bank & Trust Co. v. Lyman, 148 Conn. 273, 279, 170 A.2d 130 (1961).” Schapira v. Connecticut Bank & Trust Co., supra, 455-56. Furthermore, “[s]uch presumptions, except as they may tend to produce some measure of certainty as to the meaning which will be judicially given to the words used by the testator in his will, merely state considerations which experience has shown are apt to be in the minds of testators, to be given such weight in a particular case as its circumstances justify; they are merely aids to construction which cannot prevail over an intent fairly deducible from the terms of the will read in the light of the surrounding circumstances.” Trowbridge v. Trowbridge, 127 Conn. 469, 473-74,17 A.2d 517 (1941). Therefore, although the common law presumption against including adoptees as beneficiaries of a will applies in this case, the intent of the testator is dispositive of whether his adopted grandchildren are “grandchildren” within the meaning of his will.

A

Before examining the evidence of the testator’s intent, we must first consider a question of burden of proof. The natural grandchildren claim that in assessing the evidence of intent the trial court applied an insufficient standard of proof that requires that its judgment including the adopted grandsons as trust beneficiaries be reversed. They argue that: (1) because the judgment fails to indicate the standard of proof applied by the court, it must be assumed that the trial court applied the civil standard of a fair preponderance of the evidence, citing In re Juvenile Appeal (83-AB), 189 Conn. 58, 59, 454 A.2d 271 (1983); and (2) in light of the principle that the language of a will is to be given its primary meaning unless a contrary intent clearly or definitely appears, the court should have applied an intermediate burden of proof such as “clear and convincing evidence,” “clear and satisfactory evidence” or “clear and positive proof.” See J. Frederick Scholes Agency v. Mitchell, 191 Conn. 353, 358, 464 A.2d 795 (1983); Clark v. Drska, 1 Conn. App. 481, 486-87, 473 A.2d 325 (1984). This claim is without merit.

“ ‘The construction of a will presents a question of law to be determined in the light of facts which are found by the trial court or are undisputed or indisputable.’ Spurr’s Appeal, 116 Conn. 108, 111, 163 A. 608 [1933]; see Davis v. Margolis, 107 Conn. 417, 420,140 A. 823 [1928].” Hershatter v. Colonial Trust Co., 136 Conn. 588, 596, 73 A.2d 97 (1950). “When the facts have been found or are undisputed, nothing remains but for the trial court to exercise its legal judgment and ‘ “to draw its inference from the facts .... [I]n such a case the conclusion of the court can always be reviewed by the appellate court. An erroneous conclusion is an error of law and not an error in an inference of fact.” Hayden v. Allyn, 55 Conn. 280, 289, 11 Atl. 31 [1887].’ Davis v. Margolis, [supra, 421].” Carr v. Huber, 18 Conn. App. 150, 154, 557 A.2d 548 (1989).

Since the issue of the testator’s intent presents a question of law, our review of the trial court’s judgment that the testator intended to include his adopted grandsons as beneficiaries requires that we independently examine the record to determine whether the facts found by the trial court support this conclusion. See Connecticut Bank & Trust Co. v. Bovey, supra, 205-206 (conclusion reached by the trial court regarding the testator’s intent must stand unless it was legally or logically inconsistent with the facts found). Therefore, we need not address the propriety of the standard of proof utilized by the trial court.

Moreover, although our cases on will construction use the word “clear” or “clearly” in relation to a finding of a testator’s intent contrary to the ordinary meaning of the words used in the testator’s will; Connecticut Bank & Trust Co. v. Hills, 157 Conn. 375, 378, 254 A.2d 453 (1969) (the word “ ‘issue’ . . . will be so construed [as connoting lineal relationship by blood] unless it clearly appears that [it was] used in a more extended sense”); Bankers Trust Co. v. Pearson, 140 Conn. 332, 356, 99 A.2d 224 (1953) (“ ‘issue’ . . . will not be construed to include adopted children unless the circumstances clearly indicate that the testator so intended”); Ansonia National Bank v. Kunkel, 105 Conn. 744, 752, 136 A. 588 (1927) (“heirs at law are not to be disinherited unless the intent to do so is clear and strong”); the natural grandchildren have brought forth no authority in this state or any other that an intermediate burden of proof is required in a case such as this.

In J. Frederick Scholes Agency v. Mitchell, supra, 358, we stated that “ ‘fraud must be proven by a standard more exacting than “a fair preponderance of the evidence.” ’ ” (Emphasis added.) In Clark v. Drska, supra, 484 n.8, both parties agreed that the standard of proof was “clear and positive” proof because “the quantum of proof to establish adverse possession is well-settled in this state.” (Emphasis added.) The natural grandchildren have advanced no argument as to why the burden of proof in fraud or adverse possession cases, both long the rule in this state, should be engrafted onto a will construction case, merely because of the frequent reference to clear intent to achieve a distribution in a will contrary to the ordinary meaning of the terms used. Furthermore, in view of our broad adoption statute, the result we reach in this case is not necessarily contrary to the ordinary meaning of the term “grandchildren.” See footnote 3, supra. To claim that it is begs the question.

B

It is also necessary to address the evidentiary claims before considering the evidence regarding the testator’s intent. The natural grandchildren claim that the trial court should not have admitted into evidence a letter dated December 8, 1942, written by the testator to C. F. Mackenzie and a letter dated December 3, 1942, written to his son Charles. We do not agree.

The natural grandchildren did not object to the admission of the letter to C. F. Mackenzie at trial. In fact, following the offer of the two letters into evidence by the adopted grandchildren, the natural grandchildren stated that “there is no problem with [the Mackenzie letter] . . . .” “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial.” Practice Book § 4185; Jefferson Garden Associates v. Greene, 202 Conn. 128, 140, 520 A.2d 173 (1987). We therefore decline to review the claim challenging the admissibility of the letter to C. F. Mackenzie.

The natural grandchildren objected to the admission of the testator’s letter to Charles, but the trial court admitted the letter under the business records exception to the hearsay rule. We need not address, however, whether the letter to Charles was a business record admissible pursuant to General Statutes § 52-180. In Connecticut Bank & Trust Co. v. Coffin, supra, 694, we stated in a substantially similar context: “ ‘Testimony of declarations of a decedent introduced to show his state of mind is not excluded by the hearsay rule.’ Kukanskis v. Jasut, 169 Conn. 29, 36, 362 A.2d 898 (1975); Babcock v. Johnson, 127 Conn. 643, 644, 19 A.2d 416 (1941).” The adopted grandchildren assert that the letter to Charles was introduced to show the testator’s state of mind, specifically his attitude toward his adopted grandsons and to show his intent with regard to his will. Thus, the letter was not hearsay.

Moreover, the letter was also admissible under General Statutes § 52-172 which provides in part that “[i]n actions by or against the representatives of deceased persons . . . the entries, memoranda and declarations of the deceased, relevant to the matter in issue, may be received as evidence.” Walter v. Sperry, 86 Conn. 474, 477-78, 85 A. 739 (1913). As previously stated, the letter was relevant to the matter in issue, namely, the testator’s intent. “[T]he fact that the ground upon which the trial court admitted this [evidence] was improper does not make its admission erroneous. Witek v. Southbury, 132 Conn. 104,110, 42 A.2d 843 (1945); 5 C.J.S., Appeal and Error § 1464 (3).” State v. Ouellette, 190 Conn. 84, 93, 459 A.2d 1005 (1983). We conclude, therefore, that the trial court did not abuse its discretion in admitting the two letters into evidence.

The natural grandchildren next claim that the trial court should not have considered any evidence regarding events that occurred subsequent to the execution of the testator’s will in 1940, such as the letters, in order to determine his intent in using the term “grandchildren” at the time of execution. We do not agree.

The trial court ruled that in order to determine whether the testator intended to include his adopted grandchildren under the terms of his will, it was necessary to examine events occurring after the execution of the testator’s will. Such circumstances, the court held, are properly scrutinized where, as in this case, the information is necessary to resolve a latent ambiguity arising from the execution of a will or trust instrument. The court relied principally on Mooney v. Tolles, supra, 11, which it found “substantially similar” to the instant case.

To establish their claim that postexecution evidence is inadmissible, the natural grandchildren must of necessity dispose of Mooney, which stands four square in their way. The facts of that case are as follows. Jessie Shuttleworth, the testatrix, died on December 12, 1928, leaving a will dated November 16,1926. She left surviving her husband, Herbert W. Shuttleworth, and two sons by a former marriage, King Tolies and Sheldon H. Tolies. At the time of her death, her son Sheldon had one natural child and an adopted child, Laurel Tolies. Laurel had come to live with Sheldon on April 11, 1927, and was adopted by him and his wife on January 31, 1928. Id., 2-3.

The questions reserved to this court involved the issue of whether Laurel was included within the meaning of the terms “lawful child” and “lawful issue” of Sheldon, as used in the testatrix’s will. Id., 3-5. We concluded that “adoption prior to the execution of the will or a considerable time before the death of the testator, coupled with knowledge, on his part, of such adoption and approval thereof, are considerations persuasive of an intent to include the adoptee as a child of the adopting parent.” Id., 10-11, citing Ansonia National Bank v. Kunkel, supra, 752-53.

The natural grandchildren claim that the proposition in Mooney that events occurring after the execution of a will can be considered in determining a testator’s intent is erroneous and “ ‘is no longer good law.’ ” Their principal argument in support of this claim is that the proposition in Mooney v. Tolles, supra, is not supported by the referenced pages in Ansonia National Bank v. Kunkel, supra.

In Kunkel, the testator executed his will in 1923, and died in 1924. The will provided that one third of the income of a trust was to be paid to his sister, Nora Ford, and that upon her death, her portion of the income was to be paid to her “issue.” Nora Ford had adopted Gladys Ford in 1899. On the basis of a close relationship between the testator and Gladys and the fact that Gladys was always considered a member of the family, we concluded that she was “issue” of the testator’s sister within the meaning of the testator’s will. Id., 747-48.

Since the adoptee in Kunkel was adopted twenty-four years before the execution of the testator’s will, it is undoubtedly true that the case is not unequivocal authority for the proposition in Mooney that knowledge of an adoption occurring after the execution of a will coupled with approval, is indicative of an intent to include the adoptee within the meaning of terms such as “issue” or “child” in a testator’s will. Regardless of the claimed tenuous citation of authority, we conclude that rumors of Mooney’s death have been greatly exaggerated. The natural grandchildren claim that although Mooney has been cited many times, its actual holding has never been reaffirmed. This claim is tilting at windmills. There is no requirement that a strong statement of law be specifically reaffirmed to maintain its viability. We have carefully examined every one of the twelve cases in which Mooney has been cited by this court and in none of them is there the slightest hint that the decision is questioned or weakened in its continuing viability. See Connecticut Bank & Trust Co. v. Coffin, supra, 687; Schapira v. Connecticut Bank & Trust Co., supra, 455; Connecticut Bank & Trust Co. v. Bovey, supra, 207; Connecticut Bank & Trust Co. v. Hills, supra, 380; Hartford National Bank & Trust Co. v. VonZiegesar, 154 Conn. 352, 357, 225 A.2d 811 (1966); Smith v. Foord, 143 Conn. 550, 557, 124 A.2d 224 (1956); Morgan v. Keefe, 135 Conn. 254, 257, 63 A.2d 148 (1948); Trowbridge v. Trowbridge, supra, 473; Dolbeare v. Dolbeare, 124 Conn. 286, 289, 199 A. 555 (1938); West Haven Bank & Trust Co. v. McCoy, 117 Conn. 489, 491, 169 A. 49 (1933); Mead v. Close, 115 Conn. 443, 446,161 A. 799 (1932); Wildman’s Appeal, 111 Conn. 683, 689, 151 A. 265 (1930). This circumstance is not controlling but is highly persuasive of Mooney’s continuing authority.

Finally, we impliedly accepted the presence of Mooney among us when we stated in Connecticut Bank & Trust Co. v. Coffin, supra, 687, that “[i]n cases where we have concluded the presumption has been overcome that a testator or settlor, other than an adopting parent, did not intend to benefit adopted children because he was a ‘stranger to the adoption,’ there has been substantial evidence in the circumstances underlying the creation of the trust or devise indicating a probable intention to include adopted children in the designated class of ‘issue’ or ‘children.’ Parker v. Mullen, [158 Conn. 1, 4-5, 255 A.2d 851 (1969)] (testimony that testator’s attorney had advised him that use of the word ‘children’ rather than ‘issue’ would allow an adopted child, for whom the testator had expressed a desire to provide, to benefit from a designation of ‘children’ as remaindermen); Mooney v. Tolles, [supra, 10-11] (evidence that testator knew and approved of the adoption and had the opportunity to change her will to exclude her son’s adopted child from testamentary trusts created for benefit of ‘children’ of son as remaindermen); Ansonia National Bank v. Kunkel, supra, 753-54 (evidence that testator knew his sister’s adopted child, that he was her godfather and had a close relationship with her, that he realized his bequest to the ‘issue’ of his sister could refer only to her adopted child, and that he had used the terms ‘issue’ and ‘children’ interchangeably in his will).”

We conclude, therefore, that it was not improper for the trial court to consider evidence of events occurring subsequent to the execution of the testator’s will in order to determine the testator’s intent.

II

We now turn to the principal issue of the testator’s intent. The trial court concluded that “there [was] substantial evidence that the testator approved of the adoption of the [grandsons] and intended for them to take under the provisions of his will” but that “[i]t [was] clear that the testator, not having known of the latter two adoptions, could not have intended to benefit [the adopted granddaughters] by providing for them in his will.” Despite strenuous attempts by the natural grandchildren to convince us that it is no longer “good law,” we consider Mooney v. Tolles, supra, persuasive, and conclude that the trial court reasonably determined that there was substantial evidence that the testator intended to include the adopted grandsons within the meaning of the term “grandchildren,” and, therefore, that they are trust beneficiaries under the terms of his will.

“Whether the testatfor] intended to include in the gift to [grandchildren an adopted [grand]child depends upon the intention on the part of the testatfor], ascertained from the reading of the will, in the light of all the surrounding circumstances. Middletown Trust Co. v. Gaffey, 96 Conn. 61, 67,112 A.2d 689 (1921); note, 27 L.R.A. (N.S.) 1158. In the determination as to this intention several considerations are to be resorted to. One of these is the adoption statute in effect in the State at the time, it being presumed that the testat[or] knew and acted in contemplation of the reciprocal rights and duties resulting from the existing statute. ‘Where the statutes are broad and comprehensive in their terms, the testator is generally held to have intended to include a child of adoption within the term “child or children” . . . .’ ” Mooney v. Tolles, supra, 7-8. Thus, “the existence of the statute ‘is one of the facts to be considered among the circumstances and environment surrounding [the testator].’ ” Id., 8.

General Statutes (1930 Rev.) § 4810, our adoption statute in effect in 1940, belonged to this broad class. Section 4810 provided in pertinent part that “such [adopted] child shall thereupon become the legal child of the person by whom he shall be so adopted, and such person shall become his legal parent, with all the rights and duties between them of a legitimate parent and child. Such child by virtue of such adoption shall inherit estate from his adopting parents or their relatives as though he were the natural child of such adopting parents . . . .’’In view of this type of adoption statute, words such as “children” and “grandchildren” are more likely used to include adopted children than words which distinctly and emphatically connote lineal blood relationship, such as “issue” or “descendants.” Parker v. Mullen, supra, 7; Connecticut Bank & Trust Co. v. Hills, supra, 382.

“Two further rules of testamentary construction are relevant. ‘One of these is that heirs at law are not to be disinherited unless the intent to do so is clear and strong. . . . Again, as an aid to construction where the meaning is in doubt, that construction will be adopted which most nearly conforms to the statute of distributions.’ Ansonia National Bank v. Kunkel, [supra, 752-53] .... Another consideration is that the presumption that an adopted child was within the intended bounty of his adopting parent does not prevail where the testator is a stranger to the adoption. Middletown Trust Co. v. Gaffey, supra, p. 71. It is significant, however, that in practically all of the cases where this distinction has been given effect, it appears, as it did in the Gaffey case, that the adoption took place long after the testator’s death, and often under circumstances savoring of an attempt to create an heir for the purpose of defeating a gift over conditioned on the nonexistence of children at the termination of the first limited estate.” Mooney v. Tolles, supra, 9-10.

According to § 4810, in 1943 the adopted grandsons were the testator’s heirs at law and thus not to be disinherited from the testator’s bounty unless the intent to do so was clear and strong. Ansonia National Bank v. Kunkel, supra, 752. Furthermore, although the testator was a stranger to the adoption, the adoption of the grandsons took place before the testator’s death, rendering the instant case distinct from those cases where the presumption of inheritance has not prevailed. Mooney v. Tolles, supra.

Finally, and most significantly for the instant case, “the fact that [an] adoption occurred subsequent to the death of the testator [is] ‘a circumstance of controlling importance.’ ” Id., 10. If a testator did not know of an adoption, it is inconceivable to conclude that he intended to include one who might by adoption, years after his death, become the child of his child. Id. “Conversely, adoption prior to the execution of the will or a considerable time before the death of the testator, coupled with knowledge, on his part, of such adoption and approval thereof, are considerations persuasive of an intent to include the adoptee as a child of the adopting parent. Ansonia National Bank v. Kunkel, supra.” Id., 10-11. If a testator desired to deprive an adoptee in his bequests to “grandchildren,” he is considered to have had ample time and opportunity, between the adoption and death, to effect such discrimination by adequate provisions through a change in his will. Id., 11. “[F]ailure to do so is not without significance. Hartford-Connecticut Trust Co. v. Lawrence, 106 Conn. 178, 187, 138 Atl. 159 [1927]; Bill v. Payne, 62 Conn. 140, 142, 25 Atl. 354 [1892].” Id.

The testator, of course, was acquainted with the twin boys. The trial court found that he showed a sincere affection and concern for them. In correspondence to his friend Dr. Jones, dated November 23, 1943, he wrote: “We had a good quiet summer on Charlie’s farm in Nova Scotia. He has adopted twin boys, now almost two years old, good, healthy [and] sturdy lads, and he and his wife are devoted to them.” He also showed an interest in the financial welfare of the boys. He advised his son to establish a trust fund for the adopted twins and stated that “the income from this trust fund, to which your mother and I may be able to make some further contributions, would provide for their education.” The testator attended their christening even though he was not a regular churchgoer. He also regularly spoke with the twins’ mother about their health and welfare and was known to have inquired specifically about their eating habits and medications.

The testator also had ample time to change his will in order to rule out his adopted grandsons as “grandchildren,” if he so desired, which he did not do. This fact provided further evidence that he approved of the adoptions and wanted the boys to share in his estate. Parker v. Mullen, supra, 6; Mooney v. Tolles, supra, 11.

In view of all of the above, the trial court found that there was “substantial evidence” that the testator approved of the adoption of the twin grandsons and intended for them to take under the provisions of his will. The court then concluded that the twin grandsons should take an appropriate share of the trust proceeds designated for the testator’s “grandchildren.” We agree.

Because the fact that the adoption occurred after the death of the testator is a factor to be given great weight, the court took a different tack with respect to the adopted granddaughters. Morgan v. Keefe, supra, 257; Middletown Trust Co. v. Gaffey, supra, 70. The court concluded that the testator, not having known of the later adoptions, could not have intended for the adopted granddaughters to take under his will and, therefore, ruled them out as trust beneficiaries.

The fact that the adopted granddaughters were adopted nineteen and twenty-two years respectively after the testator’s death would, standing alone, militate strongly against their being found to be “grandchildren” within the meaning of the testator’s will. In other cases we have upheld the trial court’s finding excluding persons adopted after the testator’s death as beneficiaries of a testator’s will; see Connecticut Bank & Trust Co. v. Coffin, supra, 689-90; Schapira v. Connecticut Bank & Trust Co., supra, 455; Connecticut Bank & Trust Co. v. Bovey, supra, 209; Morgan v. Keefe, supra, 258; Wildman’s Appeal, supra, 689; because in considering the rights of an adoptee to take under a will, the fact that the adoption occurred after the death of the testator is a factor to be given great weight. Morgan v. Keefe, supra, 257. These cases, however, do not control this case.

Although Holmes’ aphorism that the life of the law is not logic but experience has been oft-quoted, we have not on this court by any means abandoned logic in our reasoning. This court has recognized that “[pjerhaps there is no class of cases where precedents have so little weight as in the construction of wills.” Lyon v. Acker, 33 Conn. 222, 225 (1866). The position of the adopted granddaughters is a good example of this, for this case is unique among previous cases in that there are here two adopted grandsons of whom the testator had knowledge and approved, and two granddaughters adopted much later of whom the testator obviously had not an inkling. Under this unusual scenario the trial court, in construing the testator’s will, incorrectly applied the customary adopted after death presumption without considering the unbreakable logical link between the two groups of adoptees. In construing the term “grandchildren” as it applied to the testator’s twin grandsons, the court properly interpreted his intent, at the time of execution of his will, as including the adopted grandsons whom he later knew and approved before his death. On the basis of this conclusion, we conclude that the testator’s use of the term “grandchildren” also included his two adopted granddaughters—also the children of Charles.

So far as this record shows, Charles had no natural children. It is likely, therefore, that the testator recognized that any of his grandchildren through Charles would be adopted, rather than biological. Thus, when he drew his will and intended “grandchilden” to include adopted grandchildren, he must be regarded as intending to include not only those adopted prior to his death, but also those adopted thereafter, because the taking class was designated as “grandchildren . . . living” at the death of his last remaining child. Under these circumstances, it is unlikely that the testator intended to include the children of Charles adopted before his death but to exclude those adopted after his death. He must have intended to include both.

With respect to the first appeal, the judgment is reversed and the case is remanded with direction to render judgment including Barbara Ann Fickes Lyttle and Heather Webb Fickes Foote within the class of grandchildren of Edwin Stanton Fickes entitled to take under the terms of his will.

With respect to the second appeal, the judgment is affirmed.

In this opinion Callahan, Glass and Borden, Js., concurred.

F.X. Hennessy, J.,

dissenting. I respectfully dissent from the majority’s conclusion that Barbara Ann Fickes Lyttle and Heather Webb Fickes Foote, adopted by Charles Fickes long after the death of his father, the testator, should take as beneficiaries under the terms of the testamentary trust.

Two children, Donald G. Fickes and Jackson W. Fickes, were adopted by the testator’s son after the will and testamentary trust were executed but before the testator died. The trial court recognized the “stranger to the adoption rule” under which a testator or a settlor, other than the adopting parent, is presumed not to intend to share his bounty with adopted persons; Schapira v. Connecticut Bank & Trust Co., 204 Conn. 450, 458, 528 A.2d 367 (1987); Mooney v. Tolles, 111 Conn. 1, 9, 149 A. 515 (1930); Middletown Trust Co. v. Gaffey, 96 Conn. 61, 67, 112 A. 689 (1921); and accordingly concluded that, under the common law, which was applicable at the time, these adopted children were presumably not “grandchildren” of the testator as that term was used in the will, because they were not blood descendants. Nevertheless, the court also recognized that adoption a considerable time before the death of the testator coupled with knowledge, on his part, of such an adoption and approval thereof are considerations persuasive of an intent to include an adoptee as a child of the adopting parent. Mooney v. Tolles, supra, 10-11.

The majority has found the Mooney case to be controlling and agrees with the trial court that there was substantial evidence that the testator intended to include the adopted grandsons within the meaning of the term “grandchildren” and, therefore, that they are trust beneficiaries under the terms of the will. Furthermore, the majority recognizes that “[t]he fact that the adopted granddaughters were adopted nineteen and twenty-two years respectively after the testator’s death would, standing alone, militate strongly against their being found to be ‘grandchildren’ within the meaning of the testator’s will.” See Connecticut Bank & Trust Co. v. Coffin, 212 Conn. 678, 689-90, 563 A.2d 1323 (1989); Connecticut Bank & Trust Co. v. Bovey, 162 Conn. 201, 209, 292 A.2d 899 (1972); Morgan v. Keefe, 135 Conn. 254, 257, 63 A.2d 148 (1948); Wildman’s Appeal, 111 Conn. 683, 689, 151 A. 265 (1930). They then dismiss this reasoning, however, by stating that “ ‘[pjerhaps there is no class of cases where precedents have so little weight as in the construction of wills.’ Lyon v. Acker, 33 Conn. 222, 225 (1866).” The rationale used to include the grandchildren adopted after the testator’s death is that if the testator intended to include the adopted grandchildren that he knew and of whom he approved, logically, the term “grandchildren” as used in the will, represents a class including all grandchildren, natural or adopted, before or after the testator’s death.

Even though there were no adopted grandchildren on the scene when the will was executed, the evidence that the testator came to know and approve of the adopted grandsons supports the trial court’s conclusion that he infused an intent into the will to include those grandchildren. Mooney v. Tolles, supra, 10-11. There are no statements, no actions and no evidence, however, that the testator intended to include any adoptees other than the adopted grandsons in his will.

For the foregoing reasons, the judgment of the trial court should be affirmed in its entirety.

       The adopted granddaughters are appellants in the first appeal and appellees in the second appeal. The natural grandchildren are appellees in the first appeal and appellants in the second appeal. The adopted grandsons are appellees in both appeals.

       Number 106 of the 1959 Public Acts provided in pertinent part: “The words ‘child’, ‘children’, ‘issue’, ‘descendant’, ‘descendants’, ‘heir’, ‘heirs’, ‘lawful heirs’, ‘grandchild’, ‘grandchildren’, when used in the singular or plural in any will or trust instrument, shall, unless such document clearly indicates a contrary intention, include legally adopted persons. . . . The provisions of this act shall apply to wills and trust instruments executed subsequent to the effective date hereof.”

       General Statutes § 45-64a provides in pertinent part: “(4) .... The words ‘child,’ ‘children,’ ‘issue,’ ‘descendant,’ ‘descendants,’ ‘heir,’ ‘heirs,’ ‘lawful heirs,’ ‘grandchild’ and ‘grandchildren’ when used in any will or trust instrument shall include legally adopted persons unless such document clearly indicates a contrary intention. . . .
      “(10) The provisions of law in force prior to October 1, 1959, affected by the provisions of this section shall apply to the estates or wills of persons dying prior to said date and to inter vivos instruments executed prior to said date and which on said date were not subject to the grantor’s power to revoke or amend.”

       In response to the adopted granddaughters’ claim for inclusion as trust beneficiaries, the natural grandchildren claim that this action is not one in which a will may speak from the time of death of the testator in accordance with the rule first enunciated in Gold v. Judson, 21 Conn. 616, 623 (1852). In view of the conclusion we reach regarding the testator’s intent prior to his death, we do not reach this issue.