Opinion
No. CV07-4024119S
August 6, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#108)
FACTS
On December 26, 2006, the plaintiff, Torrie J. Nash, filed a motion to appeal a New Haven Probate Court order dated November 28, 2006, in the New Haven Probate Court. The Probate Court granted Nash's motion and rendered a decree allowing Nash's appeal. Nash filed the decree in the Superior Court for the judicial district of New Haven, on January 23, 2007.
Nash names the following as defendants: the Estate of John Greenfield, Doris Greenfield, Lashaun Brown, and Ernestine McDade. Nash alleges the following facts in the reasons of appeal that he filed on February 9, 2007. John Greenfield, the decedent, died intestate on November 3, 2004. The decedent's daughter, Doris Greenfield, filed a petition with the New Haven Probate Court for the administration of the decedent's estate. In the petition, Doris Greenfield identified herself and John Lee Greenfield, Jr. as the two children of the decedent, stated that John Lee Greenfield, Jr. predeceased the decedent and left a living son, Torrie Nash, and identified herself and Nash as the decedent's heirs at law. He further alleges that Brown appeared in the probate proceeding in September of 2006, and claimed to be a second living son of John Lee Greenfield, Jr. In an effort to resolve the question of Brown's claim, Nash asked the Probate Court to order Nash and Brown to take a DNA test to determine whether they are siblings. Nash also requested the court to order that the DNA test results would be determinative of Brown's claim to heirship. On November 28, 2006, the Probate Court rendered the order from which Nash now appeals. Therein the court ordered Nash and Brown to make efforts to determine if they are siblings via DNA testing, that if the results determined that they were, Brown would be treated as an heir at law, but if the results were inconclusive, further evidence would be heard. The Probate Court also ordered an advance distribution of $70,000 to Doris Greenfield. Nash appeals from the DNA testing ordered in the decree on the ground that he should not be required to undergo testing because he only agreed to do so if the test would finally determine Brown's status. He appeals from the advance distribution ordered in the decree on the basis that distributions should not be made until several outstanding issues are resolved.
Although the parties have not raised the issue, it is noted that, "[a]n estate is not a legal entity. It is neither a natural nor artificial person, but is merely a name to indicate the sum total of the assets and liabilities of the decedent or incompetent. Not having a legal existence, it can neither sue nor be sued." (Citations omitted; internal quotation marks omitted.) Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 904 (1985).
On March 30, 2007, Brown filed a motion to dismiss the appeal on the ground that the Superior Court lacks subject matter jurisdiction over it in that Nash is not aggrieved by the Probate Court order. Brown submitted a memorandum of law in support of the motion. No one has filed an objection to the motion. The matter was heard on the short calendar on May 7, 2007.
DISCUSSION
"Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "A motion to dismiss. . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . When a. . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Citation omitted; internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006).
Brown moves to dismiss the probate appeal on the grounds that Nash is not aggrieved by the Probate Court order in that he does not have an interest in the decedent's estate and the order does not adversely affect him. According to Brown, Nash does not have an interest in the estate because his mother and John Lee Greenfield, Jr. were never married, the latter never properly acknowledged that Nash was his son, and the Probate Court has not yet determined that Nash is an heir of the decedent under General Statutes §§ 45a-431 and 45a-438. Brown asserts that the order does not have an adverse effect on Nash because Nash consented to the DNA testing and the $70,000 advance distribution to Doris Greenfield cannot impact any potential interest Nash may have in the estate.
In his reasons of appeal, Nash asserts that the administrator of the decedent's estate and the Probate Court have recognized Nash as an heir of the decedent. Furthermore, Nash asserts that he requested the DNA test in order to help the court definitively determine Brown's status as an heir, and an order that does not finally determine whether Brown is an heir aggrieves Nash. Nash argues that he is also aggrieved by the advance distribution to Doris Greenfield because he has not received a similar distribution due to Brown's pending claim.
General Statutes § 45a-186 provides in relevant part: "(a) Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the superior court." According to our Supreme Court, "[T]he test for determining whether a party has been aggrieved by a Probate Court decision is whether there is a possibility, as distinguished from a certainty, that some legally protected interest that [the party] has in the estate has been adversely affected." (Internal quotation marks omitted.) McBurney v. Cirillo, 276 Conn. 782, 820-21, 889 A.2d 759 (2006), overruled on other grounds, 281 Conn. 277, 914 A.2d 996 (2007). "The concept of aggrievement depends only on the existence of a cause of action upon which a party may rest his plea for relief. The issue of whether [a party] was aggrieved under [General Statutes] § 45-288 [now § 45a-186] by the actions of the Probate Court is to be distinguished from the question of whether, on a review of the merits, it will prevail. To examine the present issue the two parts of aggrievement need to be considered: (1) the nature of the appellant's interest, and (2) the adverse effect, if any, of the Probate Court's decision on that interest." (Citation omitted; internal quotation marks omitted.) Baskin's Appeal from Probate, 194 Conn. 635, 638, 484 A.2d 934 (1984). "This interest may be a direct pecuniary one, or it may consist of an injurious effect upon some legally protected right or status of the appellant. . . We have interpreted § 45a-186(a) to require that the decision of the Probate Court must have affected a party's interest in the estate in order for that party to have standing to appeal the court's order." (Citation omitted; internal quotation marks omitted.) McBurney v. Cirillo, supra, 276 Conn. 821.
Effective October 1, 2007, General Statutes § 45a-186 has been substantially amended by Public Acts of 2007 No. 07-116. The amendments do not affect the issue presently before the court.
In the past, our Supreme Court has stated "[t]he mere statement that the appellant is aggrieved, without supporting allegations as to the particular nature of the aggrievement, is insufficient." (Internal quotation marks omitted.) Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). Nevertheless, the court has also opined that "[i]f an appellant is aggrieved but fails to show the basis for that aggrievement in the motion to appeal, the appeal is merely voidable." Hartford Kosher Caterers, Inc. v. Gazda, 165 Conn. 478, 483, 338 A.2d 497 (1973). Accordingly, the Appellate Court recently reversed a trial court judgment granting a defendant's motion to dismiss that was premised on the plaintiff's failure to show aggrievement in her notice of appeal, despite evidence indicating that she actually was aggrieved. The court noted that in Baskin's Appeal from Probate, supra, 194 Conn. 643, the court "held that `where the question is merely the sufficiency of the pleading rather than the existence of a viable cause of action,' a motion to dismiss should be denied." Flor v. Pohl, 95 Conn.App. 555, 561, 899 A.2d 46 (2006).
The Supreme Court discussed both prongs of classical aggrievement in Ciglar v. Finklestone, 142 Conn. 432, 114 A.2d 925 (1955), in which the plaintiff filed an appeal from a Probate Court's decree ordering a will to probate. With respect to both prongs, the Supreme Court held that "[m]anifestly, an heir at law of a decedent has an interest in the decedent's estate. . . 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." (Citations omitted.) Id., 435. The Appellate Court recently reached the same conclusion in Molleur v. Perkins, 82 Conn.App. 468, 844 A.2d 916, cert. denied, 270 Conn. 912, 853 A.2d 527 (2004), in which the plaintiff appealed from a Probate Court order admitting a codicil of a decedent's will into probate. In dicta, the court agreed with the trial court's ruling that the plaintiff's allegation in her motion to appeal that "`[s]he is an heir at law of the deceased'. . . was sufficient for aggrievement. . . [T]he basis for her claim as stated, as a matter of law, adequately presents the nature of the plaintiff's pecuniary interests that the decree adversely affected." (Citations omitted.) Id., 472 n. 6.
In the present case, Nash states in his motion for appeal that "[h]e is a beneficiary of the estate" and alleges by implication in his reasons of appeal that he is an heir at law of the decedent. Because Ciglar holds that such allegations are sufficient to establish a party's protected interest, id., 435, Nash has adequately set forth his interest under the first prong of classical aggrievement. The Probate Court order regarding the DNA test has a direct impact on Nash's pecuniary interest in the estate as an heir at law in that it has the potential for determining whether Brown also has a claim to such status.
Furthermore, Brown has not presented any evidence in support of his arguments regarding the marital status of Nash's parents. Even if he had done so, this would not establish that Nash does not possibly have a legally protected interest in the estate. The statute that Brown relies upon, § 45a-438, does not divest children born out of wedlock from the right to inherit from their parents. Instead, the statute provides procedures to establish paternity. As the Supreme Court noted, where a plaintiff has not pleaded sufficient facts to establish aggrievement, the trial court should not grant a motion to dismiss unless "the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." Baskin's Appeal from Probate, supra, 194 Conn. 640.
General Statutes § 45a-438 provides in relevant part: "(b) Except as provided in Section 45a-731, for purposes of intestate succession by, through or from a person, an individual is the child of his genetic parents, regardless of marital status of such parents. With respect to a child born out of wedlock, the father of a child born out of wedlock shall be considered a parent if (1) the father and mother have married after the child's birth, or (2) the father has been adjudicated the father of the child by a court of competent jurisdiction, or (3) the father has acknowledged under oath in writing that he is the father of the child, or (4) after the death of either the father or the child, paternity has been established by the Probate Court by clear and convincing evidence that the father has acknowledged in writing that he is the father of the child and has openly treated the child as his."
A persuasive example of a case in which the court considered a motion to dismiss a probate appeal brought by a child allegedly born out of wedlock is Nero v. Estate of Capers, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 04 0199088 (October 28, 2004, Lewis, J.). In Nero, the Probate Court had ordered a distribution of the decedent's assets without recognizing the plaintiff as a relative of the decedent. Id. In the plaintiff's appeal of the Probate Court's order she alleged that she was aggrieved because she was "the out of wedlock child of the decedent and, therefore an heir at law of the decedent entitled to an intestate share of the decedent's estate." Id. The defendant argued that the appeal should be dismissed for lack of aggrievement because "[the plaintiff] failed to allege facts to support her allegation that she was an heir at law pursuant to General Statutes § 45a-438." Id. As in the present case, the plaintiff in Nero did not allege facts to establish that she was a child born out of wedlock under § 45a-438. Nevertheless, the court denied the defendant's motion to dismiss based on the holding in Ciglar. Nero v. Estate of Capers, supra, Superior Court, Docket No. CV 04 0199088. The court commented: "In Ciglar v. Finkelstone, the Supreme Court stated that `the allegation in a motion for appeal, and be it the only allegation relating to the interest of the plaintiff-appellant, that such party was the heir at law of the decedent and aggrieved by the decree is sufficient to satisfy the requirements of what is now [§ 45a-186] of the General Statutes.' Thus, the plaintiff has standing to appeal the decrees issued by the Probate Court by alleging that she is the heir at law of the decedent and is adversely affected by the decrees." (Citation omitted.) Nero v. Estate of Capers, supra, Superior Court, Docket No. CV 04 0199088.
In the present case, Nash has similarly alleged that he is a beneficiary of the estate, and that he is aggrieved by the Probate Court's order. Like the plaintiff in Nero v. Estate of Capers, Nash does not elaborate on facts to establish his status as a child born out of wedlock of John Lee Greenfield, Jr. Nonetheless, pursuant to the holding in Ciglar v. Finkelstone, supra, 142 Conn. 433, Nash has sufficiently alleged aggrievement under § 45a-186.
Nash also argues, in his reasons of appeal, that he is aggrieved by the Probate Court's order of an advance distribution to Doris Greenfield. Pursuant to General Statutes § 45a-234(21) the fiduciary of a decedent's estate is authorized "[t]o make distribution of assets of the estate. . . in cash. . . in divided or undivided interests, provided shares may be composed differently and specific assets may be allocated to particular distributions; to make such distribution either upon final distribution or during one or more preliminary distributions, at the then current values, as the fiduciary finds to be most practicable and for the best interests of the distributees; and to make reasonable determinations of said values for the purpose of making distribution if there is more than one distributee thereof. . ."
CONCLUSION CT Page 13876
For the foregoing reasons, Nash has standing to bring this probate appeal under § 45a-186, and the court denies Brown's motion to dismiss.CT Page 13877
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#109) FACTS
On December 26, 2006, the plaintiff, Torrie J. Nash, filed a motion to appeal a New Haven Probate Court order dated November 28, 2006, in the New Haven Probate Court. The Probate Court granted Nash's motion and rendered a decree allowing Nash's appeal. Nash filed the decree in the Superior Court for the judicial district of New Haven, on January 23, 2007.
Nash names the following as defendants: the estate of John Greenfield, Doris Greenfield, Lashaun Brown, and Ernestine McDade. Nash alleges the following facts in the reasons of appeal that he filed on February 9, 2007. John Greenfield, the decedent, died intestate on November 3, 2004. The decedent's daughter, Doris Greenfield, filed a petition with the New Haven Probate Court for the administration of the decedent's estate. In the petition, Doris Greenfield identified herself and John Lee Greenfield, Jr. as the two children of the decedent, stated that John Lee Greenfield, Jr. predeceased the decedent and left a living son, Torrie Nash, and identified herself and Nash as the decedent's heirs at law. He further alleges that Brown appeared in the probate proceeding in September of 2006, and claimed to be a second living son of John Lee Greenfield, Jr. In an effort to resolve the question of Brown's claim, Nash asked the Probate Court to order Nash and Brown to take a DNA test to determine whether they are siblings. Nash also requested the court to order that the DNA test results would be determinative of Brown's claim to heirship. On November 28, 2006, the Probate Court rendered the order from which Nash now appeals. Therein the court ordered Nash and Brown to make efforts to determine if they are siblings via DNA testing, that if the results determined that they were, Brown would be treated as an heir at law, but if the results were inconclusive, further evidence would be heard. The Probate Court also ordered an advance distribution of $70,000 to Doris Greenfield. Nash appeals from the DNA testing ordered in the decree on the ground that he should not be required to undergo testing because he only agreed to do so if the test would finally determine Brown's status. He appeals from the advance distribution ordered in the decree on the basis that distributions should not be made until several outstanding issues are resolved.
Although the parties have not raised the issue, it is noted that, "[a]n estate is not a legal entity. It is neither a natural nor artificial person, but is merely a name to indicate the sum total of the assets and liabilities of the decedent or incompetent . . . Not having a legal existence, it can neither sue nor be sued." (Citations omitted; internal quotation marks omitted.) Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 904 (1985).
On March 30, 2007, Doris Greenfield filed a motion to dismiss the appeal on the ground that Nash lacks standing to bring the appeal in that Nash is not aggrieved by the Probate Court order. Doris Greenfield submitted a memorandum of law in support of the motion. No one has filed an objection to the motion. The matter was heard on the short calendar on May 7, 2007.
DISCUSSION
"Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "A motion to dismiss. . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . When a. . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Citation omitted; internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006).
Doris Greenfield moves to dismiss the probate appeal on the ground that Nash does not have standing. According to Doris Greenfield, Nash lacks standing because neither Nash nor the Probate Court have established that Nash is the son of John Lee Greenfield, Jr., and Nash has failed to meet the requirements of General Statutes § 45a-431 for establishing parentage of a child born out of wedlock. Doris Greenfield also argues that the advance distribution to her does not aggrieve Nash because Nash has no legal interest in her one-half share of the estate, and the order to submit to DNA testing does not aggrieve Nash because he requested the order.
In his reasons of appeal, Nash asserts that the administrator of the decedent's estate and the Probate Court have recognized Nash as an heir of the decedent. Furthermore, Nash asserts that he requested the DNA test in order to help the court definitively determine Brown's status as an heir, and an order that does not finally determine whether Brown is an heir aggrieves Nash. Nash argues that he is also aggrieved by the advance distribution to Doris Greenfield because he has not received a similar distribution due to Brown's pending claim.
General Statutes § 45a-186 provides in relevant part: "(a) Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the superior court." According to our Supreme Court, "[t]he test for determining whether a party has been aggrieved by a Probate Court decision is whether there is a possibility, as distinguished from a certainty, that some legally protected interest that [the party] has in the estate has been adversely affected." (Internal quotation marks omitted.) McBurney v. Cirillo, 276 Conn. 782, 820-21, 889 A.2d 759 (2006), overruled on other grounds, 281 Conn. 277, 914 A.2d 996 (2007). "The concept of aggrievement depends only on the existence of a cause of action upon which a party may rest his plea for relief. The issue of whether [a party] was aggrieved under [General Statutes] § 45-288 [now § 45a-186] by the actions of the Probate Court is to be distinguished from the question of whether, on a review of the merits, it will prevail. To examine the present issue the two parts of aggrievement need to be considered: (1) the nature of the appellant's interest, and (2) the adverse effect, if any, of the Probate Court's decision on that interest." (Citation omitted; internal quotation marks omitted.) Baskin's Appeal from Probate, 194 Conn. 635, 638, 484 A.2d 934 (1984). "This interest may be a direct pecuniary one, or it may consist of an injurious effect upon some legally protected right or status of the appellant. . . We have interpreted § 45a-186(a) to require that the decision of the Probate Court must have affected a party's interest in the estate in order for that party to have standing to appeal the court's order." (Citation omitted; internal quotation marks omitted.) McBurney v. Cirillo, supra, 276 Conn. 821.
Effective October 1, 2007, General Statutes § 45a-186 has been substantially amended by Public Acts of 2007 No. 07-116. The amendments do not affect the issue presently before the court.
In the past, our Supreme Court has stated "[t]he mere statement that the appellant is aggrieved, without supporting allegations as to the particular nature of the aggrievement, is insufficient." (Internal quotation marks omitted.) Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). Nevertheless, the court has also opined that "[i]f an appellant is aggrieved but fails to show the basis for that aggrievement in the motion to appeal, the appeal is merely voidable." Hartford Kosher Caterers, Inc. v. Gazda, 165 Conn. 478, 483, 338 A.2d 497 (1973). Accordingly, the Appellate Court recently reversed a trial court judgment granting a defendant's motion to dismiss that was premised on the plaintiff's failure to show aggrievement in her notice of appeal, despite evidence indicating that she actually was aggrieved. The court noted that in Baskin's Appeal from Probate, supra, 194 Conn. 643, the court "held that `where the question is merely the sufficiency of the pleading rather than the existence of a viable cause of action,' a motion to dismiss should be denied." Flor v. Pohl, 95 Conn.App. 555, 561, 899 A.2d 46 (2006).
The Supreme Court discussed both prongs of classical aggrievement in Ciglar v. Finkelstone, 142 Conn. 432, 114 A.2d 925 (1955), in which the plaintiff filed an appeal from a Probate Court's decree ordering a will to probate. With respect to both prongs, the Supreme Court held that "[m]anifestly, an heir at law of a decedent has an interest in the decedent's estate. . . 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." (Citations omitted.) Id., 435. The Appellate Court recently reached the same conclusion in Molleur v. Perkins, 82 Conn.App. 468, 844 A.2d 916, cert. denied, 270 Conn. 912, 853 A.2d 527 (2004), in which the plaintiff appealed from a Probate Court order admitting a codicil of a decedent's will into probate. In dicta, the court agreed with the trial court's ruling that the plaintiff's allegation in her motion to appeal that "`[s]he is an heir at law of the deceased'. . . was sufficient for aggrievement. . . [T]he basis for her claim as stated, as a matter of law, adequately presents the nature of the plaintiff's pecuniary interests that the decree adversely affected." (Citations omitted.) Id., 472 n. 6.
In the present case, Nash states in his motion for appeal that "[h]e is a beneficiary of the estate" and alleges by implication in his reasons of appeal that he is an heir at law of the decedent. Because Ciglar holds that such allegations are sufficient to establish a party's protected interest, id., 435, Nash has adequately set forth his interest under the first prong of classical aggrievement. The Probate Court order regarding the DNA test has a direct impact on Nash's pecuniary interest in the estate as an heir at law in that it has the potential for determining whether Brown also has a claim to such status.
Furthermore, Doris Greenfield has not presented any evidence in support of her arguments regarding the marital status of Nash's parents. Even if she had done so, this would not establish that Nash does not possibly have a legally protected interest in the estate. The statute that Doris Greenfield relies upon, § 45a-438, does not divest children born out of wedlock from the right to inherit from their parents. Instead, the statute provides procedures to establish paternity. As the Supreme Court noted, where a plaintiff has not pleaded sufficient facts to establish aggrievement, the trial court should not grant a motion to dismiss unless "the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." Baskin's Appeal from Probate, supra, 194 Conn. 640.
General Statutes § 45a-438 provides in relevant part: "(b) Except as provided in Section 45a-731, for purposes of intestate succession by, through or from a person, an individual is the child of his genetic parents, regardless of marital status of such parents. With respect to a child born out of wedlock, the father of a child born out of wedlock shall be considered a parent if (1) the father and mother have married after the child's birth, or (2) the father has been adjudicated the father of the child by a court of competent jurisdiction, or (3) the father has acknowledged under oath in writing that he is the father of the child, or (4) after the death of either the father or the child, paternity has been established by the Probate Court by clear and convincing evidence that the father has acknowledged in writing that he is the father of the child and has openly treated the child as his."
An example of a case in which the court considered a motion to dismiss a probate appeal brought by a child allegedly born out of wedlock is Nero v. Estate of Capers, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 04 0199088 (October 28, 2004, Lewis, J.). In Nero, the Probate Court had ordered a distribution of the decedent's assets without recognizing the plaintiff as a relative of the decedent. Id. In the plaintiff's appeal of the Probate Court's order she alleged that she was aggrieved because she was "the out of wedlock child of the decedent and, therefore an heir at law of the decedent entitled to an intestate share of the decedent's estate." Id. The defendant argued that the appeal should be dismissed for lack of aggrievement because "[the plaintiff] failed to allege facts to support her allegation that she was an heir at law pursuant to General Statutes § 45a-438." Id. As in the present case, the plaintiff in Nero did not allege facts to establish that she was a child born out of wedlock under § 45a-438. Nevertheless, the court denied the defendant's motion to dismiss based on the holding in Ciglar. Nero v. Estate of Capers, supra, Superior Court, Docket No. CV 04 0199088. The court commented: "In Ciglar v. Finkelstone, the Supreme Court stated that `the allegation in a motion for appeal, and be it the only allegation relating to the interest of the plaintiff-appellant, that such party was the heir at law of the decedent and aggrieved by the decree is sufficient to satisfy the requirements of what is now [§ 45a-186] of the General Statutes.' Thus, the plaintiff has standing to appeal the decrees issued by the Probate Court by alleging that she is the heir at law of the decedent and is adversely affected by the decrees." (Citation omitted.) Nero v. Estate of Capers, supra, Superior Court, Docket No. CV 04 0199088.
In the present case, Nash has similarly alleged that he is a beneficiary of the estate, and that he is aggrieved by the Probate Court's order. Like the plaintiff in Nero v. Estate of Capers, Nash does not elaborate on facts to establish his status as a child born out of wedlock of John Lee Greenfield, Jr. Nonetheless, pursuant to the holding in Ciglar v. Finkelstone, supra, 142 Conn. 433, Nash has sufficiently alleged aggrievement under § 45a-186.
Nash also argues, in his reasons of appeal, that he is aggrieved by the Probate Court's order of an advance distribution to Doris Greenfield. Pursuant to General Statutes § 45a-234(21) the fiduciary of a decedent's estate is authorized "[t]o make distribution of assets of the estate. . . in cash. . . in divided or undivided interests, provided shares may be composed differently and specific assets may be allocated to particular distributions; to make such distribution either upon final distribution or during one or more preliminary distributions, at the then current values, as the fiduciary finds to be most practicable and for the best interests of the distributees; and to make reasonable determinations of said values for the purpose of making distribution if there is more than one distributee thereof. . ."
CONCLUSION
For the foregoing reasons, Nash has standing to bring this probate appeal under § 45a-186, and the court denies Doris Greenfield's motion to dismiss.