In these combined cases the plaintiff appeals from the judgments of the trial court dismissing his appeals from the Probate Court. The plaintiff was the named executor of the estate of the decedent, Ruth J. Robbins. The defendants were numerous nieces and nephews of the decedent, three of whom, Patricia P.
Although the plaintiff filed two separate appeals in the trial court from separate orders of the Probate Court, the Probate Court orders all derived from the same probate estate, and the defendants' motions to dismiss the two appeals from probate were decided together by the trial court. We therefore consider the trial court's rulings and the plaintiff's claims of error together, as applying to the sole probate estate involved in this case.
The plaintiff's first appeal was from the Probate Court's orders granting temporary administration of the decedent's estate to the First National Bank of Litchfield, finding that the decedent was domiciled in Connecticut when she died, and, as an alternate basis of jurisdiction, accepting jurisdiction over the decedent's estate pursuant to General Statutes § 45-170.
The defendants moved to dismiss the first appeal for lack of subject matter jurisdiction on the bases (1) that the plaintiff was not aggrieved, and (2) that subsequent actions of the plaintiff and the Probate Court rendered the decrees appealed from to be moot. The defendants moved to dismiss the second appeal for lack of subject matter jurisdiction on the basis that the plaintiff was not aggrieved by the decision of the Probate Court. Both motions to dismiss were accompanied by a memorandum of law alleging the facts on which the defendants relied for their claims of lack of aggrievement and mootness, and offering legal analysis based on those alleged facts.
The plaintiff filed a memorandum of law in opposition that alleged facts and offered legal analysis in support of his factual version of events. Some of the facts he alleged were substantially similar to some of the facts alleged by the defendants. Other facts were not admitted or were squarely disputed. The matter was heard at short calendar, where no testimony was taken but some documentary evidence was submitted to the court.
In a consolidated memorandum of decision on both motions to dismiss, the trial court found the following facts. The decedent resided in Litchfield from February, 1985, until her death on March 15, 1987. Shortly after her death, her niece, the defendant Patricia P. Smith, filed an application for probate of a will executed by the decedent. Smith submitted the original document to the Probate Court for the district of Litchfield. The will named the plaintiff, Otis T. Bradley, as executor and as a trustee of certain trusts created
The Probate Court scheduled a hearing on May 6, 1987, to act on the application to admit the will to probate. The plaintiff appeared through counsel "for the limited purpose of contesting jurisdiction." The plaintiff argued that the Probate Court was without jurisdiction to probate the estate. The Probate Court did not reach a decision on the issues at the hearing, and the matter was continued until June 17, 1987.
The trial court further found that subsequent to the hearing on May 6, 1987, the plaintiff filed in the Surrogate's Court of New York County, New York, an application to admit a copy of the will to probate and to have himself appointed as preliminary executor of the estate. The New York court granted him preliminary letters testamentary on the decedent's estate on May 19, 1987.
The trial court also found that on June 29, 1987, Smith had submitted an amended application for probate of the will, seeking the appointment of Howard C. Carr as executor in lieu of the appointment of the plaintiff. The ninth article of the will provided that "[i]f [Otis T. Bradley] fails to qualify or ceases to remain in office, I appoint my friend, Howard C. Carr, executor in his place." The trial court further found that on August 12,
The trial court concluded that the order of the Probate Court appointing a temporary administrator was moot, and that the plaintiff was not aggrieved by the other orders of the Probate Court. The court therefore granted the defendants' motions to dismiss. These appeals followed.
The plaintiff first claims that the trial court erred by not taking as true the factual allegations in his motions for appeal when it decided the defendants' motions to dismiss. We disagree.
The plaintiff bases this claim on Park Construction Co. v. Knapp, 150 Conn. 588, 591-92, 192 A.2d 635 (1963), where the court discussed the difference between a motion to erase and a plea in abatement under our prior practice, and held that a motion to erase an appeal reached only defects appearing on the face of the record and had to be decided on the record alone. The plaintiff argues that because the prior motion to erase was supplanted by the motion to dismiss; Practice Book § 143; the Park holding, which concerned motions to erase, is still viable and is applicable to motions to dismiss.
This argument fails for several reasons, all of which follow from the fact that the prior motion to erase and the present motion to dismiss differ in several important aspects. A motion to dismiss is used to assert jurisdictional flaws that appear on the record or that are
The plaintiff contends that the trial court, in deciding a motion to dismiss an appeal from probate on the ground of aggrievement, should have assumed the truth of the allegations in the motion to appeal, and decided only the narrow question of whether those facts were legally sufficient to constitute aggrievement. That procedure, however, is appropriate not for a motion to dismiss, but for a motion to strike. Merrimac Associates, Inc. v. DiSesa, 180 Conn. 511, 513 n.3, 429 A.2d 967 (1980). In the present case, "the question before the trial court was whether, as a matter of fact, the plaintiff was aggrieved, a precondition to the right of appeal and the jurisdiction of the Superior Court." Id., 513. The trial court's consideration of this motion was not limited to facts appearing on the face of the record; Practice Book § 143; and, accordingly, under the circumstances of this case, the court was not obliged to assume the truth of the plaintiff's factual allegations in the motion to appeal. See Merrimac Associates, Inc. v. DiSesa, supra, 513-17.
We next turn to the plaintiff's claim that the trial court erred in determining that the issues in his first appeal from probate were moot. We agree with the trial court that the probate order appointing a temporary administrator was moot. We also agree with the plaintiff, however, that the trial court erred in determining
We first consider the mootness of the appointment of a temporary administrator. On June 9, 1987, the Probate Court appointed the First National Bank of Litchfield as temporary administrator. The plaintiff appealed this decree to the Superior Court on July 31. It is undisputed that on August 12, 1987, the Probate Court found Carr qualified as executor, and that six days later the bank submitted a notarized resignation as temporary administrator. In its resignation, the bank represented to the court that "[n]o funds or property of any kind were transferred to said First National Bank of Litchfield as temporary administrator."
The plaintiff maintains that the issue of the bank's appointment as temporary administrator is not moot because the bank has not yet filed a formal sworn accounting pursuant to General Statutes § 45-263 (b).
The plaintiff does not dispute the bank's assertion that no estate assets passed through its hands. Rather, the plaintiff rests his argument on the virtually nonexistent possibility that a sworn accounting by the bank would reveal some as yet unknown "interference" by the bank with the plaintiff's administration of the estate. Even if we were to take this possibility seriously, the plaintiff's argument is legally unsound. Contrary
The plaintiff's argument, namely, that the bank's resignation is ineffective until the bank has accounted, is drawn from the language of § 45-263 (b), which governs the resignation of fiduciaries. No such requirement exists in § 45-249d (e). Section 45-249d (e) requires merely that, upon the qualification of an executor
"This court may decide a case only when it presents a live controversy which can be resolved by relief that is within the court's power to grant." Schroeter v. Salvati, 6 Conn.App. 622, 623, 506 A.2d 1083 (1986). The plaintiff's appeal of the appointment of the bank as temporary administrator fails this test. Even if we were to find that the bank's appointment somehow constituted error, the bank's legally valid resignation deprives this court of the ability to order any practical relief. The plaintiff's appeal from the order of the bank's appointment is moot.
We turn, therefore, to the claim of the plaintiff that the trial court erred in determining that the issue of the Probate Court's assumption of jurisdiction under General Statutes § 45-170 (a) was moot. The propriety of the trial court's determination of mootness of this claim hinges on the validity of the trial court's finding that "[o]n August 12, 1987, the plaintiff appeared and agreed that the will could be admitted to probate; however, the plaintiff objected to the appointment of Howard C. Carr in his stead." If in fact the plaintiff had consented to the admission of the will under General
As we noted above, the defendants' motions to dismiss were presented to the court pursuant to factual and legal memoranda of the parties. Although the plaintiff did not file a transcript of the trial court proceedings, we were informed in oral argument in this court that the defendants introduced copies of certain Probate Court documents but that no testimony was heard by the trial court. Those documents do not support the court's finding that the plaintiff consented to the admission of the will under § 45-170 (a).
Ordinarily, the failure of an appellant to produce an adequate record—in this case, a transcript of the trial court proceedings—precludes him from challenging on appeal a factual determination of the trial court. Katz Realty, Inc. v. Norwalk Fabricators, Inc., 14 Conn.App. 396, 402, 541 A.2d 519 (1988). Two considerations lead us, however, to excuse the plaintiff from the consequences of that rule. First, in the trial court it was the defendants who asserted the factual bases of their mootness claims, and thus they had the obligation to file "supporting affidavits as to facts not apparent on the record." Practice Book § 143. Instead, their memorandum simply recited a number of facts, some of which were disputed by the plaintiff. Second, it is clear from the record that the court resolved a critical disputed fact—namely, whether the plaintiff consented to the admission of the will under General Statutes
"It is fundamental that when issues of fact are disputed, due process requires an evidentiary hearing, with the opportunity to present evidence and cross-examine witnesses. Nelson v. Nelson, 13 Conn.App. 355, 367, 536 A.2d 985 (1988); Lampasona v. Jacobs, 7 Conn.App. 639, 642-43, 509 A.2d 1075 (1986). Here, the court made a ... critical factual [finding] based only on the briefs of the parties, supplemented by" the documents submitted to it. Land Enterprises, Inc. v. Dorman, 17 Conn.App. 4, 11-12, 549 A.2d 672 (1988). Accordingly, that finding cannot stand.
We next address the plaintiff's final claim, that the trial court erred in finding that the plaintiff is not aggrieved by the Probate Court's decree assuming domiciliary jurisdiction and its decree appointing Carr executor instead of the plaintiff. We examine these claims in turn.
The plaintiff claims that he is aggrieved in his capacity as executor of the estate, as trustee of certain residuary trusts established under the will and as a creditor of the estate. The plaintiff's several theories of aggrievement all proceed from the same alleged harm, namely, the additional expense and inconvenience caused by the duplicative probate administration of the estate in New York and in Connecticut.
"We must determine whether, under the facts found, the plaintiff had an interest in the proceedings below sufficient to confer upon [him] standing under General Statutes § 45-288." Id., 517. We first address the plaintiff's claim of aggrievement concerning the Probate Court's decree assuming jurisdiction over the estate.
In its memorandum of decision on the defendants' motions to dismiss, the trial court found that the dual administration of the estate arose from "the plaintiff's unilateral action in instituting proceedings in New York... despite the pending proceeding in ... Connecticut." The court held that the plaintiff "may not now rely solely upon the duplication of administration and appointment as his basis for aggrievement," when "the problems of duplication of administration and appointment were created by the plaintiff's instituting proceedings in New York."
We last turn to the plaintiff's claim that the trial court erred in concluding that he was not aggrieved by the Probate Court's decree appointing Carr executor of the estate. We agree.
The plaintiff claimed aggrievement, in his capacity as preliminary executor appointed by the New York Surrogate's Court,
The trial court found that the plaintiff was not aggrieved by Carr's appointment. The court relied upon Avery's Appeal, 117 Conn. 201, 167 A. 544 (1933), which held that an executor may not appeal from a decree removing him as fiduciary, because the removal decree, which is not vacated by the appeal, terminates his representative capacity, and he is not aggrieved, except in feelings, in his individual capacity. The trial court in this case, finding that the plaintiff had never been appointed executor in Connecticut, read Avery's Appeal to say that one whose only interest in an estate is in being named executor is not aggrieved by a decree appointing someone else to that position. See also Zempsky's Appeal from Probate, supra, 525. Were the plaintiff's sole basis for aggrievement his personal desire to be named the executor, the trial court's analysis would be correct.
The court's finding that the plaintiff could not have been aggrieved in any fiduciary capacity by the Probate Court's decree because he had never been appointed to such a capacity, however, stands in direct contradiction to the fact that the plaintiff was appointed preliminary executor of the estate in New York. Thus, the plaintiff appeared in the Litchfield Probate Court vested with a fiduciary capacity that was not within the power of the Litchfield Probate Court to revoke. Avery's Appeal, supra, is therefore inapposite to today's case. "`[P]ersons as to whom a right of appeal is recognized are those who are acting in a fiduciary or representative capacity under a subsisting appointment which has not been terminated, by revocation or otherwise, and who therefore are under present duty to protect the estate from diversion. Smith v. Sherman, 58 Mass. 408 .' (Emphasis added.) Avery's Appeal, supra, 204-205." Zempsky's Appeal from Probate,
There is error in each appeal, the judgment is set aside and the case is remanded for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
"(b) Such administrator or officer may be authorized by the court to sell any personal property of the estate which is perishable in its nature or which the court finds cannot be retained to advantage, and may be further authorized to make up or complete any stock or materials in an unfinished state, and to continue any business, so far as may be necessary for the preservation of the same.
"(c) Such administrator or officer shall file forthwith under oath an inventory of all personal property of the deceased and, when ordered to do so, shall exhibit to the court an account of his actions.
"(d) Such administrator or officer may be removed by the court with or without notice and a successor appointed whenever such action appears to the court advisable.
"(e) Upon the appointment and qualification of the administrator or the administrator with the will annexed or the qualification of the executor, such temporary administrator or such officer shall exhibit forthwith to the court an account of his trust and deliver to the administrator, executor or administrator with the will annexed all of the estate of the deceased remaining in his hands."
The plaintiff's memorandum stated, inter alia, that on August 12, 1987, the Probate Court "admitted the will to probate, and found a possible conflict of interest, declined to appoint the [Plaintiff] Executor and instead appointed Defendant Carr as Executor." It further asserted that the "Court further declined to consider the Plaintiff's written objection and pre-hearing memorandum in support of his objection." He specifically pointed out that his "willingness to serve as Executor did not constitute a waiver of his position concerning the impropriety of the Court's acceptance of general jurisdiction over this Estate," and that he had maintained the position in the Probate Court that any jurisdiction in Connecticut would have been by way of ancillary jurisdiction; see General Statutes § 45-171; rather than under General Statutes § 45-170.