Opinion
When a sale has been made by a committee in compliance with an order of sale by the Probate Court, that court has no discretion but to receive and record the committee's report of the sale. By accepting a return of sale, the court does no more than this, and therefore its action is ministerial rather than judicial and is not subject to appeal. The Probate Court appointed a committee to sell to M, who was administratrix of the estate of A, certain real estate belonging to the estate. An heir at law of A appealed from the order of the Probate Court by which it "approved" the committee's return of sale and the committee's "account." The Superior Court dismissed the appeal on motion. Held that the order is to be construed as going no further than to accept the return of sale, and therefore no appeal lies from the order.
Argued December 2, 1953
Decided January 26, 1954
Appeal from a decree of the Probate Court for the district of Andover approving the sale of certain real estate and approving a committee's return and so-called account, brought to the Superior Court in Tolland County, where a motion to dismiss the appeal was granted and judgment was rendered, Cornell, J., dismissing the appeal, from which the plaintiff appealed to this court. No error.
Irwin I. Krug, for the appellant (plaintiff).
Stephen E. Ketcham, for the appellee (defendant).
The Probate Court for the district of Andover appointed Ellsworth L. Covell a committee to sell certain real estate belonging to the estate of Anthony Jurovaty to Mary Jurovaty, the administratrix. On February 12, 1953, the court, in the words of the motion for appeal, "approved" the committee's return of sale. The court also added that it "approved" the committee's account. The plaintiff, an heir at law, took an appeal from the order of February 12 to the Superior Court, which dismissed the appeal on motion. The plaintiff has appealed from that judgment.
We note at this time that the Probate Court expressed itself as approving not only the committee's return but also its account. The court was acting pursuant to 7028 of the General Statutes, which provides that upon the application of a fiduciary to sell real estate under 7022 the court may authorize a person other than the fiduciary to make the sale. In that event that person, designated a committee, and the fiduciary are required to give probate bonds, unless exempted under 7024, "that they will faithfully administer and account for the avails of such sale according to law." The word "account," so far as it relates to the committee appointed to sell, means no more than that he shall do what the statute directs, to wit, "pay to the fiduciary the sum for which such real estate was sold." The committee is required to make a return of his doings to the court. General Statutes 6826. The return recites compliance with the order of the court as to notice and the manner of conducting the sale, the terms and the amount of cash received. 2 Locke Kohn, Conn. Probate Practice, p. 427. The fiduciary's account will show the amount received from the sale. If the committee fails to turn over the money received, he is liable on l, is bond. We shall construe the order of the Probate Court as going no further than to accept the return of the committee.
The question, then, is whether an appeal lies from the acceptance of this return of sale by the Probate Court. It is the defendant's contention that the court's act is ministerial and that no appeal lies. Section 7028 specifically states that the fiduciary may be a purchaser. Its purpose is to provide the means by which a sale to and a purchase by a fiduciary can be accomplished. Oles v. Furlong, 134 Conn. 334, 341, 57 A.2d 405. A sale having been made in compliance with the order, the court has no discretion but to receive and record the return. Its act is ministerial and not judicial. The parties in interest are not prevented thereby from questioning a sale to the fiduciary. They have the opportunity to investigate his proposed purchase at the hearing before the order of sale is passed, and again upon the allowance of his account. Holbrook v. Brooks, 33 Conn. 347, 352; Setaro v. Pernigotti, 105 Conn. 685, 686, 136 A. 571; 2 Locke Kohn, Conn. Probate Practice, p. 417; Cleaveland, Hewitt Clark, Probate Law Practice, 251; General Statutes 7022.
The dismissal of the appeal by the Superior Court was correct.