Baskin's Appeal from Probate, In re

• Decision Date: 11 December 1984
• Citation: 484 A.2d 934,194 Conn. 635
• Court: Connecticut Supreme Court
• Parties: In re Peter M. BASKIN'S APPEAL FROM PROBATE.

Page 934

484 A.2d 934

194 Conn. 635

In re Peter M. BASKIN'S APPEAL FROM PROBATE.

Supreme Court of Connecticut.

Argued Oct. 3, 1984.

Decided Dec. 11, 1984.

James D. Reardon, Essex, for appellant (plaintiff).

Marshall S. Feingold, Hartford, for appellee (defendant Caroline Baskin).

Before PETERS, C.J., and HEALEY, SHEA, DANNEHY and SANTANIELLO, JJ.

SHEA, Associate Justice.

The plaintiff Peter M. Baskin has appealed from a judgment of the Superior Court that dismissed his appeal from a decision of the Westbrook Probate Court denying his petition seeking custody and control of the body of his deceased father in order to dispose of the remains in accordance with the decedent's wishes as expressed in his will. In dismissing the appeal, the trial court held that the plaintiff was not aggrieved and therefore had no right to appeal from the Probate Court's order. We find error and remand for further proceedings.

Because the trial court did not hear the merits of the appeal, the facts forming the basis for this decision are those found by the Probate Court and are not disputed by the parties. The decedent died on November 24, 1981, leaving a will dated November 5, 1981, in which he named the plaintiff and another of his sons as co-executors of his estate. The decedent's will provided in part: "I direct that my remains be cremated without services of any kind." This will was never probated but was filed in the Probate Court in accordance with General Statutes § 45-164. ¹

After his father died, the plaintiff met with his two brothers and the surviving widow, the defendant Caroline Baskin, to make the funeral arrangements. Over the objections of the plaintiff based upon the will provision, it was decided that the decedent would be buried in accordance with the religious tenets of the family. Some time after the burial, the plaintiff filed a petition with the Probate Court pursuant to General Statutes § 45-253 for an order granting him custody and control of the decedent's remains in order to disinter the body and have it cremated as directed in the decedent's will. After balancing the varying interests of the family members, the Probate Court denied the petition.

The plaintiff appealed to the Superior Court pursuant to General Statutes § 45-288, which grants a right of appeal to "[a]ny persons aggrieved by any order, denial or decree of a court of probate in any matter ...." ² The Superior Court, on motion to dismiss by the defendant, held that the plaintiff was not aggrieved within the meaning of § 45-288 by the action of the Probate Court and dismissed the appeal from probate. This appeal followed.

"Because the right to appeal from the decision of a Probate Court is statutorily conferred by § 45-288, the absence of aggrievement, as required by that statute, is a defect that deprives the Superior Court of jurisdiction to entertain the appeal." Merrimac Associates, Inc. v. DiSesa, 180 Conn. 511, 513, 429 A.2d 967 (1980); see also Lenge v. Goldfarb, 169 Conn. 218, 220, 363 A.2d 110 (1975). "[T]he existence of aggrievement depends upon 'whether there is a possibility, as distinguished from a certainty, that some legally protected interest which [an appellant] has in the estate has been adversely affected.' " Merrimac Associates, Inc. v. DiSesa, supra, 180 Conn. 516, 429 A.2d 967, quoting O'Leary v. McGuinness, 140 Conn. 80, 83, 98 A.2d 660 (1953); accord Urrata v. Izzillo, 1 Conn.App. 17, 19, 467 A.2d 943 (1983). 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 § 45-288 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." Hartford Kosher Caterers, Inc. v. Gazda, 165 Conn. 478, 485, 338 A.2d 497 (1973). If the plaintiff had a cognizable cause of action in the Probate Court, he would be aggrieved by an order of that court denying him relief.

The plaintiff relies on General Statutes § 45-253 ³ to establish the existence of a cause of action upon which he is entitled to relief, and it was the trial court's interpretation of this statute that led to the denial of any opportunity for him to advance his claims. ⁴ As a threshold matter then, it is the interpretation of § 45-253 that will determine the propriety of the Superior Court's action. The first three sentences of § 45-253 provide a statutory scheme for the disposition of the body of a decedent when the decedent is survived by his family. ⁵ The first sentence states that the "custody and control of the remains of deceased residents of this state shall belong to the surviving spouse of the deceased." Where there is no spouse or the surviving spouse has abandoned and is living apart from the decedent, the second sentence awards such custody and control to the next of kin. The third sentence allows the Probate Court "upon the petition of any of the kin, [to] award such custody and control to that relative who seems to the court most fit for the time being to have the same."

At a minimum, it must be recognized that the second sentence of § 45-253 provides a basis for next of kin ⁶ to seek control of the body of a decedent in the case of abandonment as specified in the statute or death of the spouse. This possibility makes erroneous the dismissal of the plaintiff's appeal even though no claim of abandonment was originally presented in his reasons of appeal. 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. ⁷ In contrast, a motion to strike is the proper means of attacking a pleading that on its face is legally insufficient, although facts may indeed exist which, if properly pleaded, would establish a cause of action upon which relief could be granted. See Practice Book § 152. If a motion to dismiss is granted, the case is terminated save for an appeal of that ruling. The granting of a motion to strike, however, is not ordinarily a final judgment, since Practice Book § 157 affords a right to amend the deficient pleading. ⁸ Thus if the pleadings initiating this appeal from probate could have been amended to state a cause of action, there was error in granting the motion to dismiss. ⁹ The nature of an appeal from probate underwent a substantial change with the decision of this court in Prince v. Sheffield, 158 Conn. 286, 259 A.2d 621 (1969). There this court clearly established that an appeal from probate is a de novo proceeding in which the Superior Court is not limited to the claims raised in the Probate Court. "In an appeal from probate there is a trial de novo in which the appellant has the opportunity to present any evidence which could have been offered in the probate court, whether or not it was actually offered." Prince v. Sheffield, supra, 294, 259 A.2d 621. "In the traditional appeal, the scope of review is limited by the issues raised and the supportive evidence submitted in the lower court. In an appeal from probate, however, the informalities of the probate proceeding are corrected by permitting a full hearing in which new evidence may be submitted." Thomas v. Arafeh, 174 Conn. 464, 470, 391 A.2d 133 (1978). This court has gone so far as to allow the admission of evidence not even in existence at the time of the probate hearing. Ibid.

The dismissal of this appeal foreclosed any opportunity to amend the reasons of appeal to plead additional facts that would establish a claim that the decedent had been abandoned by the widow, as provided in the second sentence of § 45-253, as a basis for an order concerning the custody and control of the decedent's remains. During oral argument, it was not disputed that such a claim had been made in the Probate Court. It would have been possible for the plaintiff to amend his reasons of appeal to include such a claim. Since our decision in Prince, the ability to amend the reasons of appeal accompanying the initiation of an appeal from probate is indistinguishable from the ability to amend pleadings in other civil actions in accordance with the appropriate sections of the Practice Book. ¹⁰ The reasons of appeal serve essentially the same functions in defining issues and limiting evidence as does the complaint in any civil matter. 1 Locke & Kohn, Connecticut Probate Practice (1951) § 207. This conclusion is supported by Practice Book § 194, which provides that subsequent to the filing of the reasons of appeal, "pleadings shall thereafter follow in analogy to civil actions," ¹¹ and is a necessary consequence of the principles declared in Prince.

In Merrimac Associates, Inc. v. DiSesa, supra, 180 Conn. 513 n. 3, 429 A.2d 967, we noted the difference between a motion to strike and a motion to dismiss in relation to an appeal from probate and recognized the applicability of a motion to strike an appeal from probate where the question is merely the sufficiency of the pleading rather than the existence of a viable cause of action. The same principle here required that the defendant's motion to dismiss be denied.

Apart from the failure of the trial court to recognize that the plaintiff as a son of the decedent had standing to seek custody of the body by asserting de novo the claim of abandonment raised in the Probate Court, ¹² its construction of the first sentence of § 45-253 as giving the surviving widow an absolute right to the decedent's remains is inconsistent with the long-standing interpretation of that statute that we adopted in Swits v. Swits, 81 Conn. 598, 600, 71 A. 782 (1909). "From the entire Act it is apparent that its purpose is to...