Opinion
No. HHD CV 05-4017427S
April 25, 2006
MEMORANDUM OF DECISION ON MOTION TO DISMISS (#101)
The plaintiffs, Philip Sullivan and Charlotte Sullivan, filed this appeal from an order of the Probate Court appointing Attorney Thomas Donohue as successor trustee of the Mary F. Crowell Trust, an inter vivos trust. Donohue replaced Kathryn Hyland and Martin Crowell, daughter and son of Mary F. Crowell, (now deceased) after they had applied to the Probate Court to resign as trustees pursuant to General Statutes § 45a-242(b) because of extensive litigation with the plaintiffs regarding the corpus of the trust, real estate located at 37 Valley View Drive in Farmington.
In their Amended Motion for Appeal, the plaintiffs allege that as son and daughter-in-law of the deceased they are heirs-at-law and that they have "a legally protected pecuniary interest pursuant to pending litigation against the deceased, et al, and the property encompassed within said decree known as 37 Valley View Drive, Farmington, Connecticut." In their Reasons of Appeal, the plaintiffs request that the Probate Court's order appointing a successor trustee be declared null and void because they claim that the trust has been revoked and does not exist. In essence, as stated in Plaintiff's Sworn Objection to the Defendants' Motion to Dismiss, the plaintiffs are appealing the Probate Court's appointment of Attorney Donahue as successor trustee based on their challenge to "the lawful existence of an alleged REVOKED Mary E. Crowell Revokable Trust."
The defendants, Martin Crowell, Thomas Donohue, Kathryn Hyland, Attorney Jeffrey Stein, Attorney Owen Eagan, Maryanne DeLisa, Kathleen Elliot, Edward Sullivan, Jr., and Jerry Sullivan, filed a motion to dismiss the plaintiffs' probate appeal on the ground that the Superior Court lacks subject matter jurisdiction because neither plaintiff has standing to appeal the order appointing a successor trustee and because the appeal is precluded by the doctrine of res judicata.
The right to appeal a Probate Court order is conferred by statute: General Statutes § 45a-186 states in relevant part that, "[a]ny person aggrieved by any order, denial or decree of a court of probate in any matter, . . . may appeal therefrom to the Superior Court." "[T]he absence of aggrievement, as required by that statute, is a defect that deprives the Superior Court of jurisdiction to entertain the appeal." (Internal quotation marks omitted.) Adolphson v. Weinstein, 66 Conn.App. 591, 595, 785 A.2d 275 (2001), cert. denied, 259 Conn. 921, 792 A.2d 853 (2002). "The trial court does not have subject matter jurisdiction to hear an appeal from probate unless the person seeking to be heard has standing . . . In order for an appellant to have standing to appeal from an order or decree of the Probate Court, the appellant must be aggrieved by the court's decision . . . Aggrievement as a concept of standing is a practical and functional one designed to assure that only those with a genuine and legitimate interest can appeal an order of the Probate Court." (Citations omitted; internal quotation marks omitted.) Marchentine v. Brittany Farms Health Center, Inc., 84 Conn.App. 486, 490, 854 A.2d 40 (2004). "The concept of aggrievement turns on whether there is a possibility, as distinguished from a certainty, that the Probate Court's order or decree has adversely affected some legally protected interest that the appellant has in the subject matter of the decree or order or in the estate." Adolphson v. Weinstein, supra, 66 Conn.App. 596. "Moreover, it must appear that the interest which is adversely affected is a direct interest in the subject matter of the decree from which the appeal is taken." (Emphasis added.) Merrimac Associates, Inc. v. DiSesa, 180 Conn. 511, 516-17, 429 A.2d 967 (1980).
The defendants argue in support of their motion to dismiss that Charlotte Sullivan is not aggrieved because she is not an heir-at-law and she does not have a pecuniary interest in the Probate Court's order because she is not a beneficiary to the trust. They argue that Philip Sullivan is not aggrieved because, although he is an heir-at-law, he does not automatically have standing to appeal. Additionally, because he has no interest in his mother's trust, he has no pecuniary interest which is adversely affected by the Probate Court's order appointing a new trustee.
In opposition, the plaintiffs claim they are aggrieved because they are heirs-at-law and also because they have a pecuniary interest as potential judgment creditors by virtue of pending litigation against the deceased involving the real property located at 37 Valley View Drive in Farmington. Additionally, the plaintiffs argue and have set forth in their Reasons for Appeal that the probate court order is "lacking in total foundation" based on an "illusion with the clear appearance of fraud and collusion by the deceased, her alleged prior trustees and their attorneys . . ." because the trust does not exist and/or was revoked.
An heir-at-law or "legal heirs" are defined as "those who would have been entitled to inherit from [the deceased] under our statutes of distribution, had he died intestate." Daniels v. Daniels, 115 Conn. 239, 240-41, 161 A.2d 94 (1932). A daughter-in-law is not an heir-at-law. General Statutes §§ 45a-437, 45a-438. Although Charlotte Sullivan is not an heir-at-law, that does not necessarily mean that she is not aggrieved. By the same token, although Philip Sullivan is considered an heir-at-law, pursuant to General Statutes §§ 45a-437, 45a-438, that does not necessarily mean that he is aggrieved.
In Averill v. Lewis, 106 Conn. 582, 588, 138 A. 815 (1927), our Supreme Court stated that "[a]n allegation that the appellant is aggrieved `both as an heir at law and next of kin,' is a mere averment of a legal conclusion" and was not enough to show that the appellants, in that case, were aggrieved. See Doyle v. Reardon, 11 Conn.App. 297, 304, 527 A.2d 260 (1987) ("[t]he plaintiff has no legally protected interest in the estate of [the deceased] solely by virtue of his blood relationship to her as her grandson or because of any putative inheritance which may come to him, after her death, by will or intestacy.")
Our Supreme Court, in Ciglar v. Fickelstone, 142 Conn. 432, 435, 114 A.2d 925 (1955), decided that the appellant, who claimed that she was an heir-at-law, had satisfied the requirement of aggrievement, in that case which involved the Probate Court's decree admitting a will to probate. The Court, in Ciglar, stated that "[s]ince the existence of a will ordinarily requires the distribution of an estate in a manner different from that prescribed by the Statute of Distributions, under which an heir at law would take, the admission of a will to probate at least prima facie affects adversely the interest of an heir at law. It follows that in an appeal from the admission of a will to probate an allegation in the motion for appeal that the appellant is an heir at law is adequate to satisfy the requirement of [§ 45a-186] that the interest of the appellant which has been adversely affected be set forth." Id. The Court, however, also distinguished the facts in that case with others in which "the decree appealed from was of such a nature that it could have no effect on any interest of an heir at law." Id., 435-36. For example, in Lenge v. Goldfarb, 169 Conn. 218, 221, 363 A.2d 110 (1975), the Probate Court's order directed the administrator of the estate to list 960 shares of stock as an asset of the estate. In that case, our Supreme Court held that "it is well established that the mere inventorying of an asset has no effect upon the rights of an adverse claimant" and thus, the plaintiffs had failed to show that they were aggrieved, pursuant to § 45a-186. Id., 221-23.
In the present case, the Probate Court appointed a successor trustee. Unlike the admittance of a will to probate, the appointment of a successor trustee does not "prima facie [affect] adversely the interest of an heir-at-law"; Ciglar v. Fickelstone, supra, 142 Conn. 435; and is not enough to support a claim of aggrievement.
Nor is the plaintiffs' claim that they possess a pecuniary interest in the corpus of the trust enough to satisfy the requirement of aggrievement. As our Supreme Court stated in Kerin v. Goldfarb, 160 Conn. 463, 467, 280 A.2d 143 (1971), in order for the plaintiffs "to be `aggrieved' within the meaning of this statute, [they] must have not only a pecuniary interest but a pecuniary interest which has been injuriously affected by the decree appealed from." Id.
Our courts have considered the circumstances under which a party asserting an interest in real estate may be considered aggrieved under § 45a-186(a) and have held that a bidder on the property of an estate offered for sale has no interest in the property itself. See Merrimac Associates, Inc. v. DiSesa, supra, 180 Conn. 517-18. A bidder, however, does have an interest in the proceedings employed by the court to approve the sale. Id. In Bishop v. Bordonaro, 20 Conn.App. 58, 563 A.2d 1049 (1989), the plaintiffs were deemed aggrieved when they executed a contract with a seller of real property, but the Probate Court ordered that the property be sold to an intervening party, who appeared at the subsequent hearing on the application to sell and offered a higher price. Id., 60-61. It is obvious that the circumstances in this appeal are quite different from those appeals involving the assertion of an interest in real property of an estate. The appointment of a successor trustee, unlike the approval of a sale, has no cognizable effect upon an interest the plaintiffs might have in the trust corpus by virtue of their being potential judgment creditors or upon their pending litigation. "Merely possessing a legal interest in the estate, however, is not enough to confer standing upon a party. In order to show aggrievement, that party must show that the legal interest was adversely affected." McBurney v. Cirillo, 276 Conn. 782, 820-22 (2006).
Moreover, insofar as the plaintiffs are claiming that the trust was revoked and does not exist, that challenge is not before the court in this appeal. The Superior Court's jurisdiction to hear Probate Court appeals is limited to the "jurisdiction conferred on it by the statute authorizing appeals from probate . . . The appeal brings to the Superior Court only the order appealed from . . . The Superior Court may not consider or adjudicate issues beyond the scope of those proper for determination by the order or decree attacked." (Internal quotations omitted.) Marshall v. Marshall, 71 Conn.App. 565, 569-70, 803 A.2d 919, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002). The order involved in this appeal is the appointment of a successor trustee. The plaintiffs have the burden of showing that they have an interest in the trust that is injuriously affected by the Probate Court's decision. Hill v. Falsey, supra, 17 Conn.Sup. 218, 219 (1951). The plaintiffs have not stated in their appeal how that order — appointing Donohue as a successor — trustee has injuriously affected their interests. "The mere statement that the appellant is aggrieved, without supporting allegations as to the particular nature of the aggrievement, is insufficient [to establish aggrievement]"). (Citations omitted.) "The responsibility for alleging a factual basis for aggrievement for the purpose of taking a probate appeal falls squarely on the person taking the appeal." Doyle v. Abbenante, 89 Conn.App. 658, 663, 875 A.2d 558 (2005), citing Merrimac Associates, Inc. v. DiSesa, supra, 180 Conn. 511. See Shockley v. Okeke, 92 Conn.App. 76, 83, 882 A.2d 1244 (2005).
The plaintiffs request in their Reasons for Appeal that they be given an opportunity to amend their pleading to state a proper cause of action, citing Baskin's Appeal from Probate, supra, 194 Conn. 635, 638, 484 A.2d 934 (1984). In that case, the Superior Court dismissed the plaintiff's appeal from a probate decree for lack of aggrievement, but, on appeal, our Supreme Court noted that one of the claims that the plaintiff had raised before the Probate Court had not been included in his appeal documents. The court concluded that "[t]his possibility [made] erroneous the dismissal of the plaintiff's appeal even though [the disputed claim was not] originally presented in his reasons of appeal"; id., 640; because the plaintiff could have amended his pleading to include the ground of possible aggrievement. In this case, the plaintiffs have raised various and sundry reasons for appeal from the Probate Court's very limited order appointing a successor trustee to an inter vivos trust. There is nothing in the record to support the conclusion that if the plaintiffs were provided with an opportunity to replead, they could, as a matter of law and fact, amend their appeal to support a viable cause of action. See Doyle v. Reardon, 11 Conn.App. 297, 305-08, 527 A.2d 260 (1987).
The plaintiffs do not have standing to bring this probate appeal to the Superior Court because they have neither sufficiently alleged nor shown that they are aggrieved by the Probate Court's order appointing a successor trustee. As such this court lacks jurisdiction to entertain this appeal, and it is, therefore, dismissed.