Andrews v. Gorby

• Decision Date: 14 May 1996
• Docket Number: No. 15288,15288
• Citation: 237 Conn. 12,675 A.2d 449
• Court: Connecticut Supreme Court
• Parties: Gordon C. ANDREWS, Executor (Estate of John Stark Gorby) v. John Thomas GORBY et al.

Page 449

675 A.2d 449

237 Conn. 12

Gordon C. ANDREWS, Executor (Estate of John Stark Gorby) v. John Thomas GORBY et al.

No. 15288.

Supreme Court of Connecticut.

Argued Jan. 16, 1996.

Decided May 14, 1996.

William A. Phillips, Greenwich, with whom, on the brief, was David N. Levine, student intern, Greenwich, for appellant (plaintiff).

William J. Wenzel, Bridgeport, for appellee (named defendant).

Before BORDEN, BERDON, NORCOTT, KATZ and PALMER, JJ.

BERDON, Associate Justice.

The following three issues are raised in this appeal: (1) whether the Superior Court employed the correct standard of review on appeal from the Probate Court; (2) whether the Probate Court and the Superior Court on appeal therefrom are bound by a testator's direction in his will that the executor of his estate, who drafted the will, be compensated in accordance with a specified fee schedule; and (3) whether the attorney for the decedent's estate is required to maintain time records in order to receive compensation for legal services performed for the estate.

The plaintiff, Gordon C. Andrews, is the executor of the estate of the decedent and testator, John Stark Gorby (testator). The plaintiff also acted as the attorney for the estate. The named defendant, John T. Gorby, ¹ is the son of the testator and a beneficiary of his estate. In the final account of the estate, the plaintiff sought credit and an allowance in the amount of $45,898.31 as an executor's fee and $28,064 as an attorney's fee. The Probate Court for the district of Fairfield, after a hearing, allowed the plaintiff an executor's fee in the amount of $28,000 and disallowed his request for an attorney's fee. The plaintiff appealed from the Probate Court's decision to the Superior Court ² pursuant to General Statutes § 45a-186. ³ The Superior Court affirmed the Probate Court's orders and, accordingly, awarded the plaintiff $28,000. The plaintiff appealed from the judgment of the Superior Court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We reverse the judgment of the Superior Court and order a new trial.

I

We first address the Superior Court's standard of review on an appeal from a decision of the Probate Court. Prior to this court's decision in Prince v. Sheffield, 158 Conn. 286, 259 A.2d 621 (1969), our rule with respect to this standard of review was dependent upon the subject matter of the appeal. Ordinarily, an appeal from a decision of the Probate Court was "a trial de novo.... [T]he superior court decide[d] the matters on which the appeal was taken without regard to the action or decree of the probate court." Id., at 294, 259 A.2d 621. In certain instances when the Probate Court was vested with "primary jurisdiction," however, the standard of review was limited to a determination of whether the court had abused its discretion. Willard v. McKone, 155 Conn. 413, 414-15, 232 A.2d 322 (1967) (removal of trustee was primarily invested in Probate Court and on appeal Superior Court was limited to determining whether Probate Court abused its discretion). As a result of this deference, the cases understandably led to "real uncertainty as to what probate decrees are within the discretionary jurisdiction of the probate court so as to fall within the limited appeal rule." Prince v. Sheffield, supra, at 296, 259 A.2d 621. Consequently, we held in Prince "that any discretion of the probate court, even though it has been denominated in our cases as sound or primary or exclusive, or as existing in the first instance, passes to the superior court on appeal and is to be exercised by it in an independent determination, without regard to the result reached by the probate court." Id., at 299, 259 A.2d 621.

In 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: ⁴ "Appeals from any decision rendered in any case after a record is made under sections 51-72 ⁵ and 51-73 ⁶ 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.

In the present case, the parties do not dispute the fact that no record was made before the Probate Court. The absence of a record requires a trial de novo. See Gardner v. Balboni, 218 Conn. 220, 225, 588 A.2d 634 (1991); Prince v. Sheffield, supra, 158 Conn. at 298-99, 259 A.2d 621. Although the Superior Court heard evidence pertaining to the fees, that court did not, in rendering its decision, exercise "an independent determination, without regard to the result reached by the probate court." Prince v. Sheffield, supra, at 299, 259 A.2d 621. Instead, the Superior Court found that although the plaintiff's requested executor's fees were unreasonable, the Probate Court's decision with respect to the amount awarded was entitled to due deference. ⁷ The trial judge of the Superior Court stated in his memorandum of decision that although the court "generally reviews the decision of the Probate Court de novo, the fixing of fees is primarily the function of the probate courts. Absent an agreement by the parties--and there is no such agreement here--the Superior Court cannot fix such fees. It can only determine whether the Probate Court abused its discretion." The Superior Court then concluded that the Probate Court had not abused its discretion in fixing the plaintiff's fee as executor at $28,000 and in awarding no fee to him as an attorney for the estate, and rendered judgment in favor of the plaintiff for the same amount.

The conclusion of the Superior Court with respect to executor's and attorney's fees was not based upon an independent assessment of the facts established in the two day trial before that court. We are therefore required to reverse the decision of the Superior Court and to remand the case for a new trial.

II

Because this case must be retried before the Superior Court, we address the two other issues raised and argued by the parties. These are, again: whether the Probate Court and the Superior Court on appeal therefrom are bound by a testator's direction in his will that the executor of his estate, who drafted the will, be compensated in accordance with a specified fee schedule; and whether the attorney for the decedent's estate is required to maintain time records in order to receive compensation for legal services performed for the estate.

Although the Superior Court heard evidence for two days and filed a lengthy memorandum of decision, its factual findings were limited to the conclusion that "the requested executor fees of $45,898.31 in the present case would not be just and reasonable." ⁸ (Emphasis added.) We look to the transcript in order to put these issues within a factual context.

The plaintiff is an attorney admitted to practice in Connecticut. During the period for which he sought compensation, he was employed full-time as general counsel for a corporation in Woodbridge, New Jersey. He also engaged in private practice, providing legal services for friends and neighbors for a fee.

The plaintiff was the testator's neighbor for fourteen years, during which time they formed, according to the plaintiff, a "very close" relationship. The plaintiff first provided legal services to the testator when he probated the estate of the testator's wife when she died in 1986, at which time he also assisted the testator with his duties as executor. The plaintiff charged the testator $1000 for these services. At that time, the testator was eighty years old and had a will in which the plaintiff was not named as either trustee or executor. The plaintiff subsequently prepared a new will and two codicils for the testator. ⁹ The new will, executed in February, 1987, named the defendant as executor and appointed Union Trust Company as trustee and successor executor. The only direction regarding compensation was that the trustee "shall be entitled to the compensation to which testamentary trustees shall be from time to time entitled under the laws of the State of Connecticut."

The first codicil, executed in October, 1987, named "my good and loyal neighbor," the plaintiff, as both executor and trustee. The defendant was named as successor executor, and the Union Trust Company as successor trustee. It also contained a provision that provided that the "[e]xecutor ... shall be entitled to compensation in accordance with fees then payable for Estate Settlement services as published by said UNION TRUST COMPANY in its then effective Personal Trust Fee Schedule...." (fee schedule). Under the fee schedule, the executor's fee was to be calculated as a percentage of the estate's valuation for federal estate tax purposes. ¹⁰ The second codicil, executed in October, 1988, also named "my good and loyal neighbor," the plaintiff, as both executor and trustee, and further gave the plaintiff the power of appointment to name a successor executor and trustee. ¹¹

The testator died in March of 1989. His estate was admitted to probate on April 6, 1989, with the plaintiff acting as executor. The estate consisted of a gross estate valued at $748,656 and assets reported for tax purposes of $614,621. At the close of the probate proceedings, the plaintiff submitted an accounting to the Probate Court seeking approval of executor's and attorney's fees, each for approximately $28,000. The defendant objected to the requested fees. In response, the plaintiff raised his fee request for executor fees to the full amount provided for in the fee schedule, or $45,898.31. ¹² The Probate Court approved an executor's fee of $28,000 but did not award any attorney's fees. The...