Connecticut Bank & Trust Co. v. Rivkin

• Decision Date: 11 June 1963
• Citation: 192 A.2d 539,150 Conn. 618
• Court: Connecticut Supreme Court
• Parties: The CONNECTICUT BANK AND TRUST COMPANY et al., Executors (ESTATE of Naaman COHEN) v. Joseph D. RIVKIN. Supreme Court of Errors of Connecticut

Page 539

192 A.2d 539

150 Conn. 618

The CONNECTICUT BANK AND TRUST COMPANY et al., Executors (ESTATE of Naaman COHEN) v. Joseph D. RIVKIN.

Supreme Court of Errors of Connecticut.

June 11, 1963.

Robert C. Danaher, Hartford, for the appellant (defendant).

Robert N. Shea, Hartford, with whom was Robert L. Brooks, Hartford, for the appellees (plaintiffs).

Before BALDWIN, C. J., and KING, MURPHY, SHEA and ALCORN, JJ.

KING, Associate Justice.

The defendant herein, Joseph D. Rivkin, although not himself a lawyer, occupied space in the law offices of the plaintiffs' testator, Naaman Cohen. Under an arrangement which had existed for over ten years, the decedent had loaned money to Rivkin, Rivkin had rendered services to the decedent, and a running account of the transactions had been kept by the decedent. Commissioners were appointed on the estate of the decedent, which was fully solvent, under § 45-211 of the General Statutes, to act on a claim for $31,200 which Rivkin had presented against the estate and which the executors had disallowed. A hearing was held by the commissioners during which Rivkin was examined on the items of the running account, and it was agreed by counsel for both sides, on the conclusion of the testimony, that a letter could be sent the commissioners expressing a general statement of the figures and dates shown in the decedent's checkbooks covering the running account. Such a letter was subsequently sent the commissioners by Rivkin. At no time did Rivkin object to the presentation before the commissioners of the estate's claimed setoff against him which was evidenced by an outstanding balance against him in the running account.

The commissioners awarded Rivkin $7800 and reported to the Probate Court that they allowed that sum. The court accepted the report. Neither party appealed from the decision of the commissioners. The plaintiffs do not question that Rivkin is entitled to have $7800 allowed on his claim against the estate. In the present action, they sought to recover from Rivkin the estate's claim against him in the approximate amount of $3600. This is the amount which the plaintiffs had claimed before the commissioners as the sum Rivkin owed the estate.

The fundamental claim of Rivkin, as alleged in the special defense of his answer, is that, since no appeal was taken by either party, the commissioners' award to him of $7800 operates as a legal bar to the recovery in this action of any claim of the estate against him. From a judgment in favor of the plaintiffs in the amount of $3606.43, the defendant has taken this appeal.

We assume, without so deciding, that the parties are correct in treating the controlling law of this case as the same as it would have been had the commissioners been appointed on an estate represented as insolvent under § 45-226 and chapter 789 of the General Statutes. ¹ See Caffrey v. Alcorn, 115 Conn. 605, 607, 162 A. 840; 2 Locke & Kohn, Conn. Probate Practice § 521.

In the case of commissioners on insolvent estates, it is the right and duty, both of the claimant and of the administrator or executor, to insist that a setoff in favor of the estate against the claimant be brought to the attention of the commissioners and be applied against the claim presented; neither party has a right to require a different course without the consent of the other. Gregory v. Benedict, 39 Conn. 22, 24. Where the commissioners do not take into consideration the setoff of the estate against the claimant but allow the claimant the full amount of his claim, no subsequent action at law for the recovery of the estate's claim against him can be successfully maintained unless he has consented to such a course of procedure. Ibid. The reason for this rule is especially apparent in the case of an estate which is in fact insolvent, since if the rule did not apply so as to bar as subsequent action on behalf of the estate, the claimant could recover only whatever percentage of his own claim, as allowed by the commissioners, the insolvent estate could pay, although he would remain liable to pay the insolvent estate the full amount of its claim against him. Bailey v. Bussing, 37 Conn. 349, 353; 2 Locke & Kohn, op. cit. § 516, p. 586.

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