Browning v. Steers
| Decision Date | 09 March 1972 |
| Citation | 295 A.2d 544,162 Conn. 623 |
| Court | Connecticut Supreme Court |
| Parties | Louise G. BROWNING v. Bernard M. STEERS et al. |
J. Ward Rafferty, New London, with whom, on the brief, was Abram A. Washton, New London, for appellant (plaintiff).
Michael D. Shapiro, New London, with whom, on the brief, was Morgan K. McGuire, New London, for appellees (named defendant).
Before HOUSE, C.J., and RYAN, SHAPIRO, LOISELLE and FITZ GERALD, * JJ.
The appellant filed a motion for appeal from Probate on August 6, 1969, returnable to the Superior Court. The motion alleged: 2. A recitation of the order of July 8, 1969, by the Probate Court for the district of Stonington, that Mildred Gray Steers had died on May 1, 1969, leaving a will duly executed, that the court approved the will and the appointment of the executor, and that it made orders of limitations.
The appellee filed a motion to erase, claiming lack of jurisdiction in the Superior Court, and alleged: (1) that the appellant was a sister of the deceased; (2) the deceased was survived by her husband and that, therefore, the appellant is not an heir-at-law; (3) the motion for appeal does not disclose that the appellant is an aggrieved party within the intendment of General Statutes § 45-288; and (4) the motion for appeal does not disclose the appellant's interest in the estate, as required by General Statutes § 45-293, and in what manner her interest had been adversely affected by the probate orders and decree. The court sustained the motion to erase and the appellant has appealed.
Practice Book § 94 provides that a motion to erase should be made only where a want of jurisdiction appears on the record. Barney v. Thompson, 159 Conn. 416, 420, 270 A.2d 554; Perrys, Inc. v. Waterbury Redevelopment Agency, 157 Conn. 122, 123, 249 A.2d 256; Brown v. Cato, 147 Conn. 418, 419, 162 A.2d 175. The motion for appeal recited that the appellant was an heir-at-law, with no other indication of relationship to the deceased. In Ciglar v. Finkelstone, 142 Conn. 432, 433, 144 A.2d 925, it is stated unequivocally that an allegation that an appellant is an heir-at-law is a sufficient statement of the appellant's interest, a compliance with the requirements of § 45-293.
The appellate relies on Campbell's Appeal, 64 Conn. 277, 29 A. 494. In that case, although there was an averment that the appellant was an heir-at-law, the other matters alleged clearly indicated that, in fact, the appellant was not an heir-at-law. Consequently, it is not authority for the appellee's contention. Maloney v. Taplin, 154 Conn. 247, 250, 224 A.2d 731, also heavily relied on by the appellee, alleged that the appellant was a nephew. In deciding the merits of a motion to erase, facts alleged in the motion or facts referred to in oral argument may not be considered. Only the facts on the record are to be considered and, if facts which do not appear in the record are to be relied on, the proper pleading is a plea in abatement rather than a motion to erase....
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