Cottrell v. Connecticut Bank & Trust Co.

• Decision Date: 06 June 1978
• Citation: 175 Conn. 257,398 A.2d 307
• Parties: HELEN E. COTTRELL v. CONNECTICUT BANK AND TRUST COMPANY ET AL., CO-ADMINISTRATORS (ESTATE OF LEONE B. COTTRELL)
• Court: Connecticut Supreme Court

175 Conn. 257

398 A.2d 307

HELEN E. COTTRELL v. CONNECTICUT BANK AND TRUST COMPANY ET AL., CO-ADMINISTRATORS (ESTATE OF LEONE B. COTTRELL)

Supreme Court of Connecticut.

Argued February 14, 1978.

Decision released June 6, 1978.

LOISELLE, BOGDANSKI, LONGO, PARSKEY and ARMENTANO, JS.

Helen E. Cottrell, pro se, the appellant (plaintiff).

Alexander J. Holland, for the appellees (defendants).

LOISELLE, J.

The plaintiff appealed to the Superior Court from an order of the Probate Court for the district of Stonington approving a third preliminary account of the administration of the estate of Leone B. Cottrell, deceased mother of the plaintiff. The defendant coadministrators filed a plea in abatement alleging that, because a guardian ad litem had been appointed by the Probate Court to represent and protect her interests in connection with the settlement of her mother's estate and, even prior to this, a conservator had been appointed to manage her own estate, the plaintiff was legally incapable of bringing the appeal. The plaintiff demurred to the plea in abatement on the grounds that an action may be brought in the name of the real party in interest and that a plea in abatement cannot be used to test whether the guardian ad litem is a necessary party. The court overruled the demurrer, and, when the plaintiff failed to plead further, judgment was rendered for the defendants. The plaintiff has appealed, claiming that the court erred in overruling her demurrer.

By demurring to the defendants' plea in abatement, the plaintiff challenged the legal sufficiency of that plea, admitting the facts recited therein. See Kirwan v. State, 168 Conn. 498, 500, 363 A.2d 56; McAnerney v. McAnerney, 165 Conn. 277, 282, 334 A.2d 437. The specific issue raised on appeal to this court is whether one who has been adjudicated incompetent and for whom both a guardian ad litem to represent her interests in connection with the settlement of an estate and a conservator to manage her own estate have been appointed by the Probate Court may appeal in her own name as an "aggrieved" party from a Probate Court order.

The essence of the plaintiff's argument is that in Connecticut an incompetent may initiate proceedings in his or her own name to recover property. In support of this claim, she points to two early cases, Webster v. Woodford, 3 Day 90, and Looby v. Redmond, 66 Conn. 444, 34 A. 102.

In Webster v. Woodford, supra, the court held that the plaintiff, in an action of ejectment arising out of a prior conveyance of real estate by him to the defendant, could plead and prove that, at the time of the conveyance, he had insufficient mental capacity to enter into a contract. The following year, in Woodford v. Webster, 3 Day 472, the defendant in the first case sought to set aside the judgment on the ground that Webster had been incompetent at the time the original suit was brought, and that the suit had been brought by his conservator, who, according to common law, was not a proper party. The entire judgment of the court was as follows: "Nothing appears from this record, that Micah Webster, the plaintiff below, was under any disability whatever: his appearance is recorded in the usual form. His stating in the writ, therefore, that he sues by a conservator, may be rejected as surplusage." Thus, the question of whether a party for whom a conservator had been appointed could bring suit was not addressed.

Nonetheless, the case appeared in Looby v. Redmond, supra, a case involving a suit filed by the plaintiff "`with the advice and consent of his conservator.' " Id., 447. The court noted that such words did not make the conservator a party to the action, in a proper sense, but stated, with a citation to the original Webster case, that "the conservator is not, however, a strictly necessary party, for in this State a man may allege his own disability to set aside his contract." Ibid. Also cited in the case is 1 Swift, Digest, p. 180, which reveals that although under English common law mental incapacity could not be raised to defeat a contract, the law of Connecticut was otherwise. The statement continues, however, "if a lunatic recovers his senses, he can do it himself. And an idiot may do it by his own conservator." Id., 173. The Looby case itself concludes (p. 456) with the ambiguous comment that "we have discussed this case just as though the conservator was a party to it."

In neither of those cases was the issue of whether one adjudicated incompetent may bring suit specifically addressed. Rather, the cases stand for the proposition that in Connecticut a party may avoid certain contractual obligations on the ground that at the time they were entered into he or she was mentally incapacitated. To the extent that they have been interpreted to mean that one who has been adjudicated incompetent is under no legal disability preventing him or her from initiating a suit; see, e.g., 2 Locke & Kohn, Conn. Probate Practice § 709; Cleaveland, Hewitt & Clark, Probate Law and Practice § 570; they are overruled.

The issue of whether a guardian ad litem was properly appointed to represent the plaintiff's interests is not now before us. We are confronted with the conceded fact that both a conservator to handle her affairs and a guardian ad litem to represent her interests in the estate at issue have been appointed. Such appointments indicate a judgment that the plaintiff is incapable of managing her own affairs; see General Statutes § 45-70 (b); Elmendorf v. Poprocki, 155 Conn. 115, 118, 230 A.2d 1; Cleveland's Appeal, 72 Conn. 340, 341, 44 A. 476; and of representing her own interests. Until such determinations are changed, the plaintiff may not bring suit, or, in this case, bring an appeal, in her own behalf. See, e.g., In re Thorns' Will, 286 App. Div. 1146, 146 N.Y.S.2d 18; 41 Am. Jur. 2d, Incompetent Persons, § 115.

The law does not deprive a person adjudicated incompetent of access to the courts in order to seek redress; rather, provision is made to ensure that such interests are well represented. Kirwan v. State, 168 Conn. 498, 502, 363 A.2d 56. In the present proceedings involving the settlement of her mother's estate, it is the appointed guardian ad litem who has been charged with the duty to represent the plaintiff. The guardian ad litem has not sought and in fact has refused to appeal from the probate order. The question is, therefore, whether the plaintiff may seek to appeal the probate order when her legally appointed guardian ad litem refuses to do so.

The defendant claims that the language of General Statutes § 45-54¹ authorizing the appointment of a guardian ad litem for incompetent persons, clearly conveys that the appointed guardian ad litem "was the only proper party to bring the appeal in this matter because it was he, alone, who was authorized to represent the interests of his ward." Indeed, there is authority that "as a general rule, where a person has been adjudged incompetent, and a conservator, guardian, or committee has been appointed for him, he may not institute an action in his own name or by a next friend; any action on his behalf must be commenced by the conservator, guardian, or committee." 41 Am. Jur. 2d, Incompetent Persons, § 118.

It should be remembered, however, that the purpose of authorizing a guardian ad...