Opinion
No. CV 06-40252948 S
December 12, 2008.
MEMORANDUM OF DECISION
In this action the plaintiff appeals from the decision of the Probate Court for the District of Hamden, approving the final account of Paul Whitaker, administrator, c.t.a. of the estate of Mildred Mruk, late of Hamden, deceased. The plaintiff is one of three residuary beneficiaries under the decedent's will, dated October 16, 2001, which was duly admitted to probate.
The plaintiff is a 40% residuary beneficiary, as is another nephew, Paul Zachey. A niece, Dorothy Lachmund, is a 20% beneficiary.
A courtside trial was conducted on May 28, 2008, at which time evidence was presented and the parties also entered into eight stipulations of fact. Trial briefs were filed by the plaintiff on July 15, 2008 and by the defendant on July 31, 2008. The plaintiff filed a reply brief on September 11, 2008. On or about November 13, 2008, a copy of the will (Exhibit P) and probate court decree dated December 15, 2004 (Exhibit Q), were filed with the court.
With the agreement of all counsel and with permission of the court, Paul Zachey did not participate in the trial based on his counsel's representation that they would rely on the defense of the administrator.
"An appeal from a Probate Court to the Superior Court is not an ordinary civil action . . . 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 . . . 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." (Citations omitted; internal quotation marks omitted.) Marchentine v. Brittany Farms Health Center, Inc., 84 Conn.App. 486, 489-90 (2004). "In an appeal from probate, the Superior Court exercises the limited statutory jurisdiction and powers of the Probate Court." Marshall v. Kleinman, 186 Conn. 67, 69 (1982).
"Any person aggrieved by any order, denial or decree of a court of probate . . . may appeal therefrom to the Superior Court . . . Appeals from any decision rendered in any case after a record is made . . . shall not be a trial de novo." Connecticut General Statutes § 45a-186(a). In the present matter, no record was made of the hearing in the probate court; in light of the absence of a record, this court conducted a trial de novo.
At the time of her death on November 30, 2003, the decedent owned residential property located 67 Maher Avenue in Hamden, which was then occupied by the plaintiff. (May 28, 2008 Stipulation of Fact.) The jurisdiction of the Hamden Probate Court was apparently based on the decedent's domicile at the Maher Avenue property. Prior to the decedent's death the plaintiff had been appointed as her conservator by the Probate Court for the District of New Haven. Following the decedent's death, the Probate Court for the District of New Haven purported to appoint a successor conservator for the purpose of pursuing claims against the plaintiff for possible defalcations in his role as conservator of the estate of the decedent. (Defendant's Exhibit H.)
The Probate Court is a court of limited statutory jurisdiction. Marshall v. Kleinman, supra. No statute of this state has ever empowered a Probate Court to appoint a conservator for a deceased person. The appointment of a successor conservator is apparently beyond the subject matter jurisdiction of the Probate Court.
Although the plaintiff was designated as executor under the decedent's will, Paul Whitaker was appointed administrator, c.t.a. (Exhibit P.) During the course of administration the administrator attempted to collect rent from the plaintiff despite the fact that the plaintiff was a devisee of the property. The administrator did not otherwise attempt to gain control of the property under the provisions of General Statutes § 45a-321(a). The record is unclear as to whether, in addition to having an interest in the property as a residuary beneficiary, the plaintiff may have been entitled to occupancy of the property under the provisions of General Statutes § 45a-321(b).
Connecticut General Statutes § 45a-321(b) provides as follows: "The family of the decedent shall be allowed to remain in the dwelling house occupied by him at the time of his death, and may occupy such land and buildings connected therewith as the court considers necessary for their convenience and comfort until the same is sold, distributed or otherwise disposed of according to law."
When the attempts to collect rent failed, the administrator applied to the Probate Court for permission to expend estate funds to evict the plaintiff from the residence. On August 18, 2004 the Probate Court entered an order permitting the administrator to expend funds to bring an eviction action against the plaintiff. (Exhibit A.) That order provided that any funds expended in bringing an eviction action as well as any payments found to be due from the plaintiff for his use and occupancy of the property or expenses incurred by the estate due to his use and occupancy were to be charged against the plaintiff's share of the estate. ( Id.) The probate court's order was not appealed to this court.
The administrator brought a summary process action to the Superior Court which was unsuccessful. On June 14, 2005, the court (Pinkus, J.) granted a motion to strike, finding that the complaint failed to allege that the sale of the property was needed to satisfy claims against the estate and further finding that the administrator could not claim "rent" in the absence of a rental agreement. (Exhibit 2.) Thereafter, on October 18, 2005, the court (Doherty, J.) entered a judgment against the administrator, finding that the "[p]laintiff failed to establish that the sale of the property was necessary to satisfy the obligations of the estate. The plaintiff was the major creditor of the estate by virtue of his claim for services rendered. The claim should be resolved prior to bringing of another summary process action." (Exhibit 3.)
On November 30, 2005, over the objections of the plaintiff, the probate court entered a decree approving the payment of legal fees in the amount of $4,578.50 incurred in connection with the unsuccessful summary process action. (Exhibit C.) The plaintiff did not take an appeal from the order.
On December 28, 2005, the administrator signed an administrator's deed conveying the Maher Avenue property to buyers in exchange for $179,000. (Exhibit 4.) Despite the date of the deed the parties stipulated that the property was sold on December 15, 2005, with the plaintiff still in possession of the property.
The decree which is the subject of this appeal was signed by the Probate Court on September 15, 2006. (Exhibit D.) In his complaint, the plaintiff describes the appeal as one taken from "the order and decree of this court dated September 15, 2006 approving the proposed final account submitted by Paul Whitaker, Administrator, c.t.a." In his reasons of appeal filed with the court on May 23, 2007, the plaintiff describes the order as one "approving the administrator's proposed administration account."
The account in question shows assets and income received by the fiduciary in the amount of $246,354.83. (Exhibit O.) After payment of debts and administration expenses the account shows an amount on hand for distribution of $192,712.58. ( Id.) On a schedule of proposed distribution the administrator shows reductions in the plaintiff's share in the amount of $26,805.64 and corresponding increases in the shares of other residuary beneficiaries in the same total amount. ( Id.) The decreases include four separate "surcharges" against the plaintiff which are not otherwise explained on the account. The administrator claimed that the actions of the plaintiff constituted a waste of the estate's assets, and sought the four "surcharges" against the plaintiff's distributive share of the estate. The four claims are as follows.
1. $13,149.60, representing 40% of the net settlement proceeds of $32,874.00 from the conservator bond, which otherwise would have gone to him;
2. $6,436.24, representing 60% of the $10,727.07 in expenses relating to the property for eviction costs, real estate taxes, homeowners premiums, and locksmith charges, which otherwise would have gone to the other beneficiaries;
3. $6,810.00, representing 60% of the $11,350.00 in expenses for additional administrator/attorneys fees and guardian ad litem fees, which otherwise would have gone to the other beneficiaries, and
4. $409.80, representing 60% of the $683.00 expended by the estate for a second yearly premium for the probate bond, which otherwise would have gone to the other beneficiaries.
The probate court approved the accounting, concurring with the administrator with respect to each surcharge.
DISCUSSION A. Surcharge related to conservator bond
The administrator sought, and the probate court approved, a surcharge related to the settlement of the estate's claim against the conservator bond in the net amount of $32,874.00 related to the plaintiff's mishandling of Mildred Mruk's funds when the plaintiff served as conservator. (Exhibits D, N.) The plaintiff's share of the estate was surcharged 40% of the settlement proceeds; that surcharge amount, $13,149.60, was added to the shares of the other two beneficiaries of the estate, thereby increasing their shares above the percentages of the estate left to the other beneficiaries in the will. The plaintiff argues, inter alia, that deducting a portion of the bond settlement from his share of the estate could expose him to double liability, while the defendant claims that because there was no evidence presented by the plaintiff of any suit or even notice of claim against him on the bond, the plaintiff's argument is speculative and should be rejected.
On September 14, 2005, nearly two years after the death of Mildred Mruk, the Probate Court removed the plaintiff as Conservator, and purported to appoint Clifford D. Fritzell, Esq. as "successor Conservator."(Exhibit H, I.) Additionally, the Probate Court, on February 17, 2005, had appointed Attorney Pritzell as "Guardian Ad Litem" for the deceased ward, Mildred Mruk. (Exbibit G.) There does not appear to be any basis in the record for either appointment nor does there appear to be a statutory basis for such appointments.
The court agrees with the plaintiff. While Attorney Whitaker moved for the surcharge because he felt that the plaintiff should not benefit from his actions, evidence was offered by the defendant regarding the plaintiff's mishandling of funds, and the only evidence established that the only adjudication or litigation relating to the bond proceeds occurred at the probate court, the surcharge exposes this defendant to the risk of double liability, to the bonding company and to the other two beneficiaries who have benefitted from the surcharge to the detriment of the plaintiff. The fact remains that the bonding company may very well pursue a claim against the plaintiff. The fact that the bonding company has not initiated a claim to date does not mean that it will not do so in the future. As such, imposition of the surcharge would potentially expose the plaintiff to double liability and would be contrary to law. "It ought to be and it is the object of courts to prevent payment of any debt twice over . . . Nothing can be more clearly just, than that a person who has been compelled, by a competent jurisdiction, to pay a debt once, should not be compelled to pay it over again." Parker, Peebles Knox, Inc. v. National Fire Ins. Co., 111 Conn. 383, 394-95 (1930) (citations omitted; internal quotations omitted). See also Hospital of St. Raphael v. New Haven Savings Bank, 205 Conn. 604, 615 (1987).
Although it appears from the evidence that to date, the bonding company has not brought a claim against the plaintiff, the possibility of a claim still exists, in light of the six-year contract statute of limitation. See Connecticut General Statutes § 52-576.
B. Surcharge related to preservation of property
The administrator sought, and the probate court approved, a surcharge in the amount of $6,436.24, which is 60% of the $10,727.07 in expenses related to the property "such as real estate taxes, homeowner's insurance premium, locksmith charges and service use fees." (Exhibit D.) The plaintiff takes the position that the additional administration expenses attributable to the delay in the completion of the estate due to the eviction action brought against the plaintiff were not due to any failure by the plaintiff to vacate, but rather were due to the Administrator's unreasonable delay in pursuing an unnecessary, and ultimately unsuccessful, eviction action against the plaintiff. The plaintiff points out that the summary process action was not necessary to complete the administration of the estate. The defendant, on the other hand, argues that the fact that the eviction action was unsuccessful is not determinative of whether the surcharge was proper.
The evidence at trial established that the plaintiff was maintaining the property, which had deteriorated, and that no one else besides the plaintiff had been helping Mrs. Mruk. Additionally, after Mrs. Mruk's death, the plaintiff, who spent a considerable time at sea, stored his personal belongings in the garage, in anticipation of the house sale.
The court agrees with the plaintiff. While the record does not indicate how the administrator was empowered under the terms of the will to convey title to the property to the buyers, the cost of maintaining the property until the sale was for the benefit of all the beneficiaries. The record does not indicate that the plaintiff did not have a right to occupy the premises as a tenant in common.
The court recognizes that the plaintiff did not appeal from the August 18, 2004 probate court order, Exhibit A, which purports to surcharge the plaintiff for "any payment found to be due from Frank V. Zachey, Jr., for his use and occupancy of the estate's real property . . . and any unpaid utility bills and/or other expenses incurred during his use and occupancy . . ." This court finds that although final by virtue of the plaintiff's failure to appeal, the order is vague and not sufficiently specific such that the plaintiff would waive any rights by failure to appeal.
C. Surcharge relates to additional fees
The administrator sought, and the probate court approved, a surcharge in the amount of $6,810.00, which is 60% of the $11,350.00 expended for "the additional attorney fees, Guardian Ad Litem fees and Administrator's fees that would have been avoided if Frank Zachey, Jr., did not deliberately prevent the Estate from being settled in a timely manner." (Exhibit D.) The plaintiff claims that the summary process action was not necessary to complete the administration of the estate and that the fees were due to the Administrator's pursuit of an unnecessary, unsuccessful eviction action against the plaintiff. The defendant counters that the fact that the eviction action was unsuccessful is not determinative of whether the fees are proper, and, moreover, the plaintiff failed to appeal the probate court decrees authorizing the administrator to initiate the eviction, and ultimately to pay the eviction expenses.
The court is unfamiliar with any basis upon which the probate court could properly appoint a guardian ad litem for a person known to be deceased. Typically, a court may appoint a guardian ad litem for minors and incompetent, undetermined and unborn persons. See Connecticut General Statutes § 45a-132.
The court agrees with the defendant on the latter point. The plaintiff's failure to appeal the probate court orders settled the issue. The unappealed probate court orders mandated that the fees incurred in the summary process action be charged against the plaintiff. (Exhibits A, C.) The allocation of this expense in the amount of $6,810.00 is justified.
D. Surcharge related to extension of probate bond
The administrator sought, and the probate court approved, a surcharge in the amount of $409.80, representing 60% of the $683.00 premium for the probate bond for an additional year. Neither party addressed this issue in their briefs. For the reason that this court finds that any delays in the administration of the estate were attributable to the administrator's ill-advised pursuit of the summary process action to evict the plaintiff, a family member of the decedent who had been occupying the residence at the time of the decedent's death, prior to obtaining an order of sale from the probate court, the court finds for the plaintiff as to this issue.
E. Award of pre-death expenses incurred by the plaintiff
The plaintiff claims that he should be awarded pre-death expenses of $19,541.40 he expended to support Mildred Mruk, and maintain the property, and there was evidence, although unconvincing, of those claimed expenses. The defendant attacks the validity of the claims, and, furthermore, argues that the claims are time-barred by Connecticut General Statutes § 45a-363, as asserted in his Amended Answer and Special Defense of May 23, 2008. The defendant is correct. The plaintiff did not commence suit within 120 days of the denial of the claim by the Administrator (Exhibit M). As such, the plaintiff's claim for pre-death expenses is time-barred.
§ 45a-363 provides in relevant part as follows:
(a) No person who has presented a claim shall be entitled to commence suit unless and until such claim has been rejected, in whole or in part, as provided in section 45a-360.
(b) Unless a person whose claim has been rejected (1) commences suit within one hundred twenty days from the date of the rejection of his claim, in whole or in part, or (2) files a timely application pursuant to section 45a-364, he shall be barred from asserting or recovering on such claim from the fiduciary, the estate of the decedent or any creditor or beneficiary of the estate, except for such part as has not been rejected.
CONCLUSION
The plaintiff's appeal as to the surcharge relating to the conservator bond, the preservation of the property, and the extension of the probate bond, is sustained. For the reasons stated above, the plaintiff's appeal is sustained, and the administrator c.t.a is ordered to file a revised final account consistent with the foregoing findings.