Borzenski v. Estate of Stakum

• Decision Date: 05 March 1985
• Court: Connecticut Supreme Court
• Parties: Lucy Stakum BORZENCKI v. ESTATE OF Anthony J. STAKUM et al.

Page 341

489 A.2d 341

195 Conn. 368

Lucy Stakum BORZENCKI v. ESTATE OF Anthony J. STAKUM et al.

Supreme Court of Connecticut.

Argued Dec. 6, 1984.

Decided March 5, 1985.

John R. Caruso, Farmington, for appellant (plaintiff).

Eugene A. Skowronski, Derby, with whom was William J. St. John, Jr., Waterbury, for appellees (defendants).

Before ARTHUR H. HEALEY, PARSKEY, SHEA, DANNEHY and SANTANIELLO, JJ.

ARTHUR H. HEALEY, Associate Justice.

The main issue in this appeal is whether the Superior Court properly ordered a partition by sale of certain real estate located in Oxford in which the parties ¹ owned varying fractional interests in their own rights and through the testate estate of Anthony J. Stakum (testator).

The testator, a widower, died on April 11, 1980, a resident of Oxford. His last will and testament was admitted to probate in the Probate Court for the district of Oxford. The residuary clause of the will devised to certain parties interests in three contiguous parcels of land in Oxford comprising in total approximately 105.3 acres. We refer to these parcels, as have the parties, as parcels 1, 2 and 3. Parcel 1 contains approximately 81.8 acres; parcel 2 contains approximately 21.5 acres; and parcel 3 contains approximately 2 acres of land. The interests of the parties in parcels 1 and 3 arise out of ownership acquired by them prior to the testator's death as well as from his estate. ² Parcel 2 was owned entirely by the testator at the time of his death. Under his will, the devisees of that parcel and the interests devised are:

Parcels 1 and 3 consist of approximately 83.8 acres of land ³ in which the testator held an undivided one half interest upon his death. The ownership interests and the interests devised under the testator's will are the following:

On October 20, 1980, pursuant to General Statutes § 45-247, now § 45-257a, ⁴ the defendant William Stakum, both as executor and as an heir, and the defendants Linda Stakum Baker and Ida Stakum, ⁵ requested permission of the Probate Court for an order of partition by sale of parcels 1 and 3, which were owned by the plaintiff, the defendants and the estate as tenants in common. ⁶ The plaintiff opposed this motion. On December 20, 1980, after notice and hearing, the Probate Court entered an order authorizing and empowering the executor to sell the real property involved at a private sale. Thereafter, the plaintiff appealed to the Superior Court. Following a two day trial de novo, the Superior Court affirmed the decree of the Probate Court and ordered a partition by sale. In doing so, the Superior Court concluded that a sale and division of the net proceeds would best promote the interests of the parties. This appeal followed.

On appeal, the plaintiff claims that the trial court erred: (1) in granting a partition by sale under § 45-257a of a 105 acre parcel of land which could be physically divided when, in the plaintiff's view, the defendants failed to prove that a partition by sale would better promote the best interests of the decedent's estate and the other parties concerned; and (2) in granting a partition by sale it failed to consider the public policy of this state favoring the preservation of farmland. We find no error.

In examining the plaintiff's first claim of error, we learn that it is essentially three-fold. First, the trial court, in ordering a partition by sale under § 45-257a, did so in derogation of the settled preference for partition in kind over partition by sale. Second, the 105 acre parcel could have been physically divided. Third, the defendants failed to sustain their burden of proving that partition by sale would better promote the interests of the estate and all the interested parties.

"It has long been the policy of this court, as well as other courts, to favor a partition in kind over a partition by sale." (Citations omitted.) Delfino v. Vealencis, 181 Conn. 533, 536, 436 A.2d 27 (1980); Coxe v. Coxe, 2 Conn.App. 543, 550, 481 A.2d 86 (1984). In Delfino, we also said that "[s]ince our law has for many years presumed that a partition in kind would be in the best interests of the owners, the burden is on the party requesting a partition by sale to demonstrate that such a sale would better promote the owners' interest." (Citations omitted.) Delfino v. Vealencis, supra, 181 Conn. 538, 436 A.2d 27; see Johnson v. Olmsted, 49 Conn. 509, 517-18 (1882). This presumption in favor of a partition in kind, a threshold issue upon an application for a partition by sale, remains viable. In order to prevail, the proponents of a partition by sale must demonstrate that two conditions are satisfied: "(1) the physical attributes of the land are such that a partition in kind is impracticable or inequitable; and (2) the interests of the owners would better be promoted by a partition by sale." (Citations omitted.) Delfino v. Vealencis, supra, 181 Conn. 537-38, 436 A.2d 27; Kaiser v. Second National Bank, 123 Conn. 248, 256, 193 A. 761 (1937); Contaldi v. Errichetti, 79 Conn. 273, 276, 277-78, 64 A. 211, 219 (1906); Coxe v. Coxe, supra.

The inequity of a near absolute preference for partition in kind under certain circumstances long ago led to statutory enactments permitting partition by sale. Johnson v. Olmsted, supra, 517. Because "as it might sometimes happen that by partition [in kind] the property would be practically sacrificed, the statute has opened a way of escape from such a result" by permitting a court of equity to order a partition by sale when the court's opinion is that "a sale will better promote the interest of the owners." Id.

The statutory right to partition by sale must be examined in light of the particular statute in effect, its language and historical derivation. Penfield v. Jarvis, 175 Conn. 463, 466, 399 A.2d 1280 (1978). Our early decisions "dealing with the new statutory remedy of partition by sale emphasized that '[t]he statute giving the power of sale introduces ... no new principle; it provides only for an emergency, when a division cannot be well made, in any other way.' " (Citations omitted.) Id., 471, 399 A.2d 1280.

The parties in this case agree that the defendants petitioned the Probate Court for a partition by sale pursuant to § 45-257a and that the plaintiff appealed to the Superior Court from the Probate Court decree approving such a sale. That statute provides, inter alia, that the Probate Court, after a full hearing "shall ... make all orders as the interests of the parties and the estate demand...." and that partition by sale shall not be ordered "unless ... it appears that the best interests of the estate and of the parties concerned will be promoted thereby...." General Statutes § 45-257a(b). It further provides that if the Probate Court is of the opinion that a sale "will better promote the interests of the owners, or that the property cannot be beneficially divided for the purpose of distribution, it may order the sale of any or all of such property...." General Statutes § 45-257a(c). That subsection also provides that "unless" the petition is signed by "all the persons in interest" the court, after a full hearing "shall ... make all orders as the interests of the parties and the estate demand ..." and "[i]n such case the court shall not order sale unless ... it appears that the best interests of the estate and of the parties concerned will be promoted thereby...." Id.

It thus appears that this statute recognizes that "the wisdom of the law's preference for partition in kind"; Delfino v. Vealencis, supra, 181 Conn. 543, 436 A.2d 27; may, in a proper case, give way to a partition by sale. In this statutory and decisional context, an order of a partition by sale involves the court's exercise of discretion. See Kaiser v. Second National Bank, 123 Conn. supra, 256, 193 A. 761; Johnson v. Olmsted, supra, 517; see also Novitsky v. Novitsky, 9 Conn.Sup. 136, 137 (1940) (King, J.). Section 45-257a, fairly read, gives the court the discretion to order a partition by sale upon finding, in a given case, that it is preferable to a partition in kind.

In the plaintiff's appeal from the Probate Court, the Superior Court held a trial de novo. See Thomas v. Arafeh, 174 Conn. 464, 466-68, 391 A.2d 133 (1978); Prince v. Sheffield, 158 Conn. 286, 299, 259 A.2d 621 (1969). In that trial, the parties pressed their claims concerning the partition of the 105.37 acres. We will dispose of this case on the theory on which it was tried and on which the trial court decided it. Fuessenich v. DiNardo, 195 Conn. 144, 151, 487 A.2d 514 (1985); Machiz v. Homer Harmon, Inc., 146 Conn. 523, 525, 152 A.2d 629 (1959). Expert and other testimony was adduced concerning the land, and the trial court was presented with questions of credibility concerning that testimony. In its memorandum of decision, the trial court said, inter alia, that "[t]he better, weightier and more persuasive evidence leads to the determination that the property in issue should be sold rather than partitioned. All the credible evidence mandates this conclusion ... [and] it is abundantly clear that the property does not lend itself to a partition. A sale and division of the net proceeds will best promote the interests of the parties." This decision was not clearly erroneous. Practice Book § 3060D.

There was evidence before the trial court of the following: The 105 acre tract is T-shaped and thus is irregular in shape; this limits the building area. Used primarily as a dairy farm since before 1926 until the testator died in 1980, the entire tract is located in an industrial zone. A portion of the tract abuts two country highways, Jack's Hill Road on the south and North Larkey Road on the west. A farmhouse, barn and outbuildings are located on the southerly portion of the tract fronting on Jack's Hill Road. There are no other improvements on the tract. The ideal access to the tract is on Jack's Hill Road, on which it has a frontage of 1400 feet more...