The plaintiff Peter M. Baskin has appealed from a judgment of the Superior Court that dismissed his appeal from a decision of the Westbrook Probate Court denying his petition seeking custody and control of the body of his deceased father in order to dispose of the remains in accordance with the decedent's wishes as expressed in his will. In dismissing the appeal, the trial court held that the plaintiff was not aggrieved and therefore had no right to appeal from the Probate Court's order. We find error and remand for further proceedings.
Because the trial court did not hear the merits of the appeal, the facts forming the basis for this decision are those found by the Probate Court and are not disputed by the parties. The decedent died on November 24, 1981, leaving a will dated November 5, 1981, in which he named the plaintiff and another of his sons as coexecutors of his estate. The decedent's will provided in part: "I direct that my remains be cremated without services of any kind." This will was never probated but was filed in the Probate Court in accordance with General Statutes § 45-164.
After his father died, the plaintiff met with his two brothers and the surviving widow, the defendant Caroline Baskin, to make the funeral arrangements. Over the objections of the plaintiff based upon the will provision, it was decided that the decedent would be buried in accordance with the religious tenets of the family. Some time after the burial, the plaintiff filed
The plaintiff appealed to the Superior Court pursuant to General Statutes § 45-288, which grants a right of appeal to "[a]ny persons aggrieved by any order, denial or decree of a court of probate in any matter...."
"Because the right to appeal from the decision of a Probate Court is statutorily conferred by § 45-288, the absence of aggrievement, as required by that statute, is a defect that deprives the Superior Court of jurisdiction to entertain the appeal." Merrimac Associates, Inc. v. DiSesa, 180 Conn. 511, 513, 429 A.2d 967 (1980); see also Lenge v. Goldfarb, 169 Conn. 218, 220, 363 A.2d 110 (1975). "[T]he existence of aggrievement
The plaintiff relies on General Statutes § 45-253
The nature of an appeal from probate underwent a substantial change with the decision of this court in Prince v. Sheffield, 158 Conn. 286, 259 A.2d 621 (1969). There this court clearly established that an appeal from probate is a de novo proceeding in which the Superior Court is not limited to the claims raised in the Probate Court. "In an appeal from probate there is a trial de novo in which the appellant has the opportunity to present any evidence which could have been offered in the probate court, whether or not it was actually offered." Prince v. Sheffield, supra, 294. "In the traditional appeal, the scope of review is limited by the issues raised and the supportive evidence submitted in the lower court. In an appeal from probate, however, the informalities of the probate proceeding are corrected by permitting a full hearing in which new evidence may be submitted." Thomas v. Arafeh, 174 Conn. 464, 470, 391 A.2d 133 (1978). This court has gone so far as to allow the admission of evidence not even in existence at the time of the probate hearing. Ibid.
The dismissal of this appeal foreclosed any opportunity to amend the reasons of appeal to plead additional facts that would establish a claim that the decedent had
In Merrimac Associates, Inc. v. DiSesa, supra, 513 n.3, we noted the difference between a motion to strike and a motion to dismiss in relation to an appeal from probate and recognized the applicability of a motion to strike an appeal from probate where the question is merely the sufficiency of the pleading rather than the existence of a viable cause of action. The same principle here required that the defendant's motion to dismiss be denied.
Apart from the failure of the trial court to recognize that the plaintiff as a son of the decedent had standing to seek custody of the body by asserting de novo the claim of abandonment raised in the Probate Court,
In this opinion the other judges concurred.
It was represented at oral argument that the will had been presented for probate in accordance with General Statutes § 45-163, but was never probated because there were no assets in the decedent's estate.
There is nothing before this court to indicate that a stenographic record of the proceedings in the Probate Court was made pursuant to General Statutes §§ 51-72 and 51-73. Neither party made such a claim, nor was any such record submitted to this court on appeal.
"(b) This section shall not apply to the disposition of a body of a deceased person under the provisions of sections 19a-270 and 54-102; nor shall it affect the powers and duties of the chief medical examiner under the provisions of sections 19a-406 to 19a-408, inclusive."
Prior to Prince it was generally assumed that claims made on appeal could not be changed by amendment in the Superior Court. "An appeal from probate is taken and allowed in the Probate Court. It is part of the proceedings of that court. Its legal insufficiency cannot be cured in the Superior Court by amendment or by offering testimony to overcome a defect apparent on its face." Maloney v. Taplin, 154 Conn. 247, 248-49, 224 A.2d 731 (1966). The Prince decision, by expanding the scope of the proceedings on appeal, necessarily expanded the power of the Superior Court with regard to the pleadings initiating the appeal. The Superior Court in the de novo proceeding on appeal exercises all of the powers of the Probate Court; Prince v. Sheffield, 158 Conn. 286, 298, 259 A.2d 621 (1969); including the ability to amend the claims raised on appeal. Nor is it possible to limit the ability to amend, as provided in General Statutes § 45-290, when new evidence may be presented in the de novo proceeding which can change the issues presented to the court for decision. See Practice Book § 178. This modification of the nature of an appeal from probate renders invalid prior assumptions concerning limitations upon the powers of the Superior Court in this regard.
"Appellees opposing the probate of a will shall specifically deny such of the reasons of appeal as they intend to controvert and affirmatively allege any other grounds upon which they propose to rely.
"The appellant in appeals involving the probate of a will shall file, with his reasons of appeal, a copy of the will."
In Tkaczyk v. Gallagher, 259 F. Sup. 584 (D. Conn. 1966), the plaintiffs attempted to challenge the actions of the state courts in refusing to transfer custody and control of the decedent's remains. The federal district court held that there was no federal question raised by the plaintiff's complaint and dismissed the action.