Opinion
No. CV 04-0083699 S
February 24, 2005
MEMORANDUM OF DECISION
Introduction
This is an appeal from orders of the Probate Court for the District of Andover. The Plaintiff, Morris Silverstein, claims that he is an heir at law and creditor of the estate of Esther S. Silverstein and that he is aggrieved by the orders of the Probate Court denying his application to have the decedent's Columbia, Connecticut property distributed to the heirs at law and approving the administrator's application to sell the property to Ralph C. Bowen III and Kara A. Bowen. The issues raised in the reasons of appeal are that: 1) there is no need to sell the land, there are no estate debts or expenses approved since the final accounting in 1994 and there should be no debts or administrative expenses since then since there has been nothing to administer; 2) the heirs are entitled to the use and enjoyment of their inherited lands and its distribution is long overdue; and 3) the heirs have a constitutional, legal, and equitable right to inherit the land.
Trial on this matter was held on November 5th and 9th, 2004. Richard B. Laschever, administrator of the estate, Morris Silverstein, and Steve Karlson, attorney for the Bowens, participated in the trial. Testimony was heard from Attorney Laschever, William Fleet, a real estate agent, Morris Silverstein, and Ralph Bowen. Dorothy Mitchell, one of the other heirs, advised the court in writing that she desired that the land be sold as soon as possible. Pre- and post-trial memoranda of law were also filed.
Discussion
From the evidence presented the following facts are found. By application dated September 25, 2003, the Administrator sought approval to sell certain real property. The administrator requested that he be allowed to sell land consisting of approximately thirty-five acres owned by the decedent at her death in Columbia, Connecticut for $170,000 to Ralph C. Bowen, III and Kara A. Bowen. By order of the Probate Court dated January 15, 2004, the court approved the application of the administrator to sell the property by private sale to the Bowens for $170,000 in cash and by separate order, denied the Plaintiff's application for a distribution of the real property to the heirs of the estate. This appeal followed.
This estate has been opened since 1969. In 1994 the Probate Court approved the administrator's final accounting and ordered that the assets of the estate be distributed in accordance with the proposed distribution. The proposed distribution provided that the equity in the Columbia property be distributed by thirds to each of the heirs. At that time the Probate Court approved a final accounting which provided for payment of administrative fees in the amount of $18,300. That order was appealed to the Superior Court and by decision dated January 8, 1998 the amount was reduced to $17,925. The court noted that the award was as of July 31, 1994 and additional fees incurred subsequently, if any, were not part of the order. The court also found that the Plaintiff had received certain sums which should have been paid to the estate and, in view of these disclosures, referred the matter back to the Probate Court for the filing of a supplemental or amended final accounting by the administrator. The court did not address the order of distribution and no amendments to that decision were ordered. The Superior Court decision was upheld by the Appellate Court ( 54 Conn.App. 901 (1999)) and certification to appeal that decision was denied by the Supreme Court ( 251 Conn. 905 (1999)). The administrator claims that he incurred significant expenses defending these appeals. The administrator argues that the sale of the property is necessary to pay administrative fees incurred after 1994 and a shortfall of payment of the fees approved in 1994. At the time of the Probate Court decision on the application to sell the real estate, no accounting had been filed since the 1994 accounting and no fees or expenses of administration had been approved since the Superior Court decision in 1994. The assets of the estate include only the land in Columbia and a bank account. The administrator testified that there is only about $1,741 in cash in the estate. It is unclear why the amount the administrator claims is in the bank account now is the same amount reflected in the 1994 accounting. It may be that the funds are still in an account bearing no interest as was noted in the Superior Court's 1998 decision. It is also unclear why this estate has continued to remain open and no further accountings have been filed since 1999 and the order of distribution entered in 1994 has not been complied with. "Our law has always been solicitous that there be a complete settlement of a decedent's estate as soon as that is possible. Webster v. Merriam, 9 Conn. 225, 228; 2 Locke Kohn, Conn. Probate Practice, § 262, p. 39." Chase Nat. Bank v. Guthrie, 139 Conn. 178, 186 (1952).
As to the property which is the subject of the application, the administrator first tried to sell it in 1998 and had a buyer for about $75,000 but for some reason that sale was not completed. The Plaintiff describes the land in his brief as a "35+/-acres parcel of vacant, non-productive, unimproved woodland on a dirt road bordering on a swamp in Columbia, Connecticut." The administrator referred to a market analysis by a real estate agent, Mr. Fleet, which put the value of the property at plus or minus $4,000 an acre. In May 2003 Fleet offered the land for sale at a price of $250,000 but later determined that the properly was unsuitable for development and reduced the price. The property contains wetlands that cannot be built on. Fleet believes that the offer by the Bowens to purchase the property at $170,000 is very fair. There have been no other offers to buy the property.
The principles regarding the court's jurisdiction and discretion in an appeal from a decision of a Probate Court are well established. "An appeal from a Probate Court to the Superior Court is not an ordinary civil action. State v. Woodin, 90 Conn. 48, 50-51, 96 A. 178 (1915); Silverstein's Appeal from Probate, 13 Conn.App. 45, 52-53, 534 A.2d 1223 (1987). When entertaining an appeal from an order or decree of a Probate Court, the Superior Court takes the place of and sits as the court of probate. Satti v. Rago, 186 Conn. 360, 365, 441 A.2d 615 (1982); Stevens' Appeal, 157 Conn. 576, 581, 255 A.2d 632 (1969); Dunham v. Dunham, 97 Conn. 440, 443, 117 A. 504 (1922); Slattery v. Woodin, supra, 51; Wilson v. Warner, 84 Conn. 560, 564, 80 A. 718 (1911); Hewitt's Appeal from Probate, 53 Conn. 24, 35, 1 A. 815 (1885); Davis's Appeal from Probate, 39 Conn. 395, 400 (1872). In ruling on a probate appeal, the Superior Court exercises the powers, not of a constitutional court of general or common-law jurisdiction, but of a Probate Court. Slattery v. Woodin, supra; Tolles's Appeal from Commissioners, 54 Conn. 521, 524, 9 A. 403 (1886); Silversteins' Appeal from Probate, supra, 53. The function of the Superior Court in appeals from a Probate Court is to take jurisdiction of the order or decree appealed from and to try that issue de novo. Baskin's Appeal from Probate, 194 Conn. 635, 641, 484 A.2d 934 (1984); Satti v. Rago, supra, 364-65; Stevens' Appeal, supra, 580-81; Hotchkiss' Appeal, 89 Conn. 420, 432, 95 A. 26 (1915); Silverstein's Appeal from Probate, supra, 54. Thereafter, upon `consideration of all evidence presented on the appeal which would have been admissible in the probate court, the superior court should exercise the same power of judgment which the probate court possessed and decide the appeal as an original proposition unfettered by, and ignoring, the result reached in the probate court.' Prince v. Sheffield, 158 Conn. 286, 298, 259 A.2d 621 (1969)." Kerin v. Stangle, 209 Conn. 260, 263-64 (1988).
"An appeal from probate is not so much an `appeal' as a trial de novo with the Superior Court sitting as a Probate Court and restricted by a Probate Court's jurisdictional limitations. Kerin v. Stangle, 209 Conn. 260, 264, 550 A.2d 1069 (1988); Baskin's Appeal from Probate, 194 Conn. 635, 641, 484 A.2d 934 (1984); Prince v. Sheffield, 158 Conn. 286, 298, 259 A.2d 621 (1969); see D'Agostino v. Amarante, 172 Conn. 529, 530, 375 A.2d 1013 (1972). Although the Superior Court may not consider events transpiring after the Probate Court hearing; Satti v. Rago, 186 Conn. 360, 369, 441 A.2d 615 (1982); it may receive evidence that could have been offered in the Probate Court, whether or not it actually was offered. See Baskin's Appeal from Probate, supra; Stevens' Appeal, 157 Conn. 576, 581, 255 A.2d 632 (1969):" Gardner v. Balboni, 218 Conn. 220, 225 (1991).
However, "[i]n 1982, the legislature enacted No. 82-472 of the 1982 Public Acts, which revised the Superior Court's standard of review of Probate Court decisions by adding the following language to § 45a-186: `Appeals from any decision rendered in any case after a record is made under sections 51-72 and 51-73 shall be on the record and shall not be a trial de novo.' (Emphasis added.) In other words, § 45a-186 provides that if a record, including a transcript, of the testimony was made before the Probate Court pursuant to §§ 51-72 and 51-73, the Superior Court shall review the decree of the Probate Court using an abuse of discretion standard." (Footnotes omitted). Andrews v. Garb, 237 Conn. 12, 15-16 (1996). Here the court has not been presented with any record from the Probate Court nor have the parties cited to any. Thus the court's review is de novo.
General Statutes § 45a-164(a) provides that: "Upon the written application of the conservator of the estate of any person, guardian of the estate of any minor, temporary administrator, administrator or trustee appointed by the court, including a trustee of a missing person, or the executor or trustee under any will admitted to probate by the court, after such notice as the court may order and after hearing, the court may authorize the sale or mortgage of the whole or any part of, or any easement or other interest in, any real property in this state of such person, minor, missing person, deceased person or trustee, or of any real property the legal title to which has been acquired by such temporary administrator, administrator, executor or trustee, if the court finds it would be for the best interests of the parties in interest to grant the application."
"Title to real property passes upon death to the heirs of the owner subject to the right of administration. Lundberg v. Kovacs, 172 Conn. 229, 232n, 374 A.2d 201 (1977); O'Connor v. Chiascione, 130 Conn. 304, 306, 33 A.2d 336 (1943). The power of the Probate Court to order the sale of such property is special and statutory and the authority must be strictly followed, otherwise the order of sale will be void. Offredi v. Huhla, 135 Conn. 20, 23, 60 A.2d 779 (1948). Before a sale can be ordered, the court must find that it is in the `best interests of the parties in interest.' General Statutes § 45-238. If the sale is to be private, the court must also find that the price and terms of the sale are in the `best interests of the estate.' General Statutes § 45-241. The issues being statutory, the burden is on the proponent, in this case the administrator, to establish in the Probate Court, and in the Superior Court, on appeal, the statutory predicate for the court's order. Pastir v. Bielski, 174 Conn. 193, 194, 384 A.2d 367 (1978); D'Agostino v. Amarante, 172 Conn. 529, 530-31, 375 A.2d 1013 (1977); Crane v. Manchester, 143 Conn. 498, 501, 123 A.2d 752 (1956). The burden remains the same on appeal whether the proponent is the appellant or the appellee and whether or not the opponent, as appellant, asserts in her reasons of appeal the negative of the statutory issue or issues. Id. If the proponent seeks a private sale, then he must prove that the price and terms of such sale are in the best interests of the estate, even in the absence of a specific claim to the contrary in the reasons for appeal." (Footnotes omitted.) Satti v. Rago, 186 Conn. 360, 365-7 (1982).
Here the proponent of the sale, the administrator, has failed to establish how the sale is in the best interests of the parties involved. Those parties are the heirs and creditors of the estate. Although the Plaintiff claims that the sale is needed for the payment of administrative expenses he provided no evidence as to the amount of administrative expenses previously approved which remain unpaid. The accounting approved by the Probate Court in 1994 showed administrative expenses, including the administrator's fee of $18,300, of $44,937.15, and income of $47,178.15, more than enough to cover the administrator's fee. In addition, there has been no accounting of the $3,206 the Superior Court previously found was collected by the Plaintiff which was properly an asset of the estate. Apparently no supplemental or amended final accounting was filed in accordance with the Superior Court's order at the time of the Probate Court orders which are the subject of this appeal. In any event, in the absence of a current accounting, the court cannot determine that the assets of the estate are insufficient to pay the administrator's fees and expenses. "The purpose of an account is to inform the court and all interested as to the condition of the estate. To that end, it properly consists of a statement of the assets and other items with which the fiduciary is chargeable, the expenditures and other credits, and a showing of the balance of the estate undisposed of and remaining for distribution. In re Mark's Estate, 116 Conn. 58, 63, 163 A. 600 (1932)." Lenczyk v. Georgetti, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. CV 96-0472840S (Keller, J., January 29, 1997), affirmed, 48 Conn.App. 903 (1998), cert. den., 244 Conn. 932 (1998).
Yet in Offredi v. Huhla, 135 Conn. 20, 21 (1948), the court stated: "The application was made under § 4945 of the General Statutes, as amended by § 670g of the Supplement of 1943, which authorizes a Probate Court to make an order of sale of the real property of an estate `if it shall find reasonable cause therefor' and requires that the court shall in its order `direct whether such sale shall be public or private and, if public, the notice thereof which shall be given.' No list of claims had been filed at the time the application was made, and there was no evidence of any outstanding debts against the estate. The plaintiffs contend that a Probate Court has no power to order a sale of real estate under such circumstances, especially when a majority of the heirs oppose a sale. Originally, probate courts had no authority over the real estate belonging to the deceased, but in later times such courts could, by statutory authority, order the sale of so much, and only so much, of the land of the deceased as was necessary to pay any excess there might be of the indebtedness of the deceased over the value of the personal property. Dorrance v. Raynsford, 67 Conn. 1, 7, 34 A. 706. In the revision of the probate law in 1885, the statute was broadened to give the Probate Court power to order the sale of real estate `in its discretion.' Public Acts, 1885, Chap. 110, § 166. In Buel's Appeal, 60 Conn. 63, 65, 22 A. 488, decided in 1891, we reviewed our statutory history, and said (p. 67) that certain of the former restrictions had been removed, that a sale could be ordered without reference to the amount of debts, and that the question of sale is left to the sound discretion of the court, to be decided after a hearing, with full knowledge of all the facts, and subject of course to the right of appeal. Our present law is tersely stated in Callahan v. Peltier, 121 Conn. 106, 112, 183 A. 400: `The Court of Probate may, in its discretion, order sale of any of the real estate if conditions render it necessary or advantageous.' It follows that in the present case the mere fact that a sale was not necessary in order to pay the debts of the estate did not make the order of sale invalid, and that opposition of some of the heirs, while entitled to consideration, was not of controlling importance . . . The power of the Court of Probate to order the sale of real estate is not regarded as one that pertains to the ordinary settlement of the estate but is special and statutory, and the rule is that the authority must be strictly followed, otherwise the order will be void. Dorrance v. Raynsford, supra." However this case is distinguishable from the matter now before the court. The Court in Offredi did void the sale however because the Court found that the sale had not been conducted in an appropriate manner. In addition, the statute there applicable provided for a sale of real property when the court found "reasonable cause" therefore, a standard arguably different than that currently set forth in General Statutes § 45a-164(a).
The Plaintiff argues that any expenses that were incurred by the administrator are personal debts of the administrator and not that of the estate. The court disagrees. "Expenses of administration incurred during the settlement of an estate should be allowed as a matter of course if properly incurred. Hewitt v. Beatie, 106 Conn. 602, 38 A. 795 (1927). The test of allowableness of items of administration expense is whether they are equitably chargeable to the estate because properly and reasonably incurred for the benefit of the estate. Brown v. Eggleston, 53 Conn. 110 (1885) . . . An administrator is entitled to a reasonable compensation for his services, depending upon the circumstances of the case. `Reasonable' means what is fair in view of the size of the estate, the responsibilities involved, the character of the work required, the special problems and difficulties met in doing the work, the results achieved, the knowledge, skill and judgment required of and used by the administrator, the manner and promptitude in which the estate has been settled, and the time and service required, and any other circumstances which may appear in the case and are relevant and material to this determination. Hayward v. Plant, 98 Conn. 374, 384-85, 119 A. 341 (1923)." Lenczyk v. Georgetti, Superior Court, judicial district of Hartford/New Britain at New Britain, Docket No. CV 96-0472840S (Keller, J. January 29, 1997), affirmed, 48 Conn.App. 903 (1998), cert. den. 244 Conn. 932 (1998). In the over ten years since the last approval of his fees, it can be assumed that the Administrator has incurred additional expenses in administering the estate, especially in defending the appeals from the 1994 Probate Court decision. Such expenses are an appropriate charge to the estate. Reed v. Reed, Executrix, 80 Conn. 401, 410 (1908).
Based on the evidence presented the court cannot determine, however, that the sale is in the best interest of the parties. There was no evidence presented as to the current status of the assets of the estate. There were no appraisals of the property provided to the court or information regarding comparable sales. "Although General Statutes § 45-238 authorizes a sale of the ward's real estate if the court finds such sale is in the best interests of the parties, in exercising its discretion in ordering such sale the court must determine that the conditions render it necessary or advantageous. Offredi v. Huhla, 135 Conn. 20, 22, 60 A.2d 779 (1948); Callahan v. Peltier, 121 Conn. 106, 112-13, 183 A. 400 (1936). In discharging its affirmative duty to the ward, the court is required to determine not only whether the real estate should be sold at all but, if so, whether the proposed sale price is fair. Where, because of the sale of other assets, there is no immediate need for the sale of a particular parcel of real estate, the sole question before the court is whether the sale is advantageous to the estate. Offredi v. Huhla, supra. If, in determining the latter issue, reliance must be placed on expert opinion and that opinion is in turn based upon a certain factual foundation, the court, in discharging its affirmative duty to preserve and protect the ward's assets, should satisfy itself that the factual foundation is not built on quicksand." Marshall v. Kleinman, 186 Conn. 67, 70 (1982).
Lastly, the Plaintiff argues that the Probate Court cannot order a sale of the property which was previously the subject of the order of distribution entered in 1994. This court agrees. The accounting which formed the basis for such order was appealed and affirmed except as noted above. Thus the order of distribution remains in effect. Even while an appeal is pending, an order of the Probate Court "remains in full force and effect unless and until a judgment of the Superior Court determines otherwise. Kerin v. Stangle, 209 Conn. 260, 265, 550 A.2d 1069 (1988); Pettee v. Hartford-Connecticut Trust Co., 105 Conn. 595, 603, 136 A. 111 (1927). `An appeal from probate does not vacate the decree appealed from nor does it lift the entire cause from the probate court into the superior court. On the contrary, it leaves the entire matter as it was in the probate court, there to be continued with and completed according to law, presenting in the meanwhile to the superior court for redetermination, after a retrial of the facts, the special and limited issues embraced within the particular decree appealed from.' 1 W. Locke P. Kohn, Connecticut Probate Practice 214; see also Kerin v. Stangle, supra." Bishop v. Bordonaro, 20 Conn.App. 58, 61-62 (1989). "That is, the probate decree appealed from continues `in full force' until the appellate tribunal otherwise determines. Pettee v. Hartford-Connecticut Trust Co., 105 Conn. 595, 603, 136 A. 111 (1927); Dickinson's Appeal from Probate, 54 Conn. 224, 231, 6 A. 422 (1886)." Kerin v. Stangle, 209 Conn. 260, 265 (1988). Here the Superior Court made no contrary orders regarding the order of distribution entered by the Probate Court in 1994. This court cannot here, sitting as a Probate Court, modify that order by permitting the sale rather than distribution of the property. A probate decree that has been rendered after proper notice cannot be revoked or modified except under express statutory authority. Lillico v. Perakos, 152 Conn. 526, 530 (1965). That authority is set forth in General Statutes § 45a-128 which provides, in part, that ". . . any order or decree . . . made by a court of probate may, in the discretion of the court, be reconsidered and modified or revoked by the court, on the court's own motion or on the written application of any interested person. Such application shall be made or filed within one hundred twenty days after the date of such order or decree and before any appeal is allowed or after withdrawal of all appeals. The court may reconsider and modify or revoke any such order or decree for any of the following reasons: (1) For any reason, if all parties in interest consent to reconsideration, modification or revocation, or (2) for failure to provide legal notice to a party entitled to notice under the law, or (3) to correct a scrivener's or clerical error, or (4) upon discovery or identification of parties in interest unknown to the court at the time of the order or decree." Neither the appropriate timing or grounds exist for the court to reconsider the order of distribution. Nor does the court have jurisdiction over such order since it is not the subject of this appeal. Since the order of distribution remains in effect and that order provides that the land be distributed to the heirs, the court cannot order its sale.
Conclusion
Therefore the order of the Probate Court granting the application to sell the Columbia property is reversed. As to the Plaintiff's application to distribute the property to the heirs, in light of the previous order of distribution no action need be taken on his application.
Jane S. Scholl, J.