DiFrancesca v. Rousseau

• Decision Date: 27 June 1979
• Docket Number: No. 27543,27543
• Citation: DiFrancesca v. Rousseau, 409 A.2d 1252, 36 Conn.Supp. 34 (Conn. Super. 1979)
• Court: Connecticut Superior Court
• Parties: Donald DiFRANCESCA v. Diane ROUSSEAU.

Page 1252

409 A.2d 1252

36 Conn.Supp. 34

Donald DiFRANCESCA v. Diane ROUSSEAU.

No. 27543.

Superior Court of Connecticut, Judicial District of Middlesex.

June 27, 1979.

DiFrancesca & Archambault and Lloyd E. Hinchey, Norwich, for plaintiff.

John J. Carta, Jr., Essex, for defendant.

DORSEY, Judge.

This action is an appeal from a decree of final accounting of the Probate Court, district of Haddam. The plaintiff provided legal assistance to the executrix of the estate of Winifred Bailey and submitted a bill for those services in the amount of $3300. The court approved and allowed the final account of the executrix but disallowed $2300 of the legal fees. The plaintiff alleges that he is aggrieved by the court's order and decree.

The defendant has moved to dismiss the appeal on the ground that the court lacks jurisdiction over the subject matter. She points out in her brief that the plaintiff is not a creditor of the estate of Winifred Bailey, he is a creditor of the executrix. Hewitt v. Beattie, 106 Conn. 602, 138 A. 795. Prior to the passage of § 52-202 of the General Statutes, the exclusive remedy of such a post mortem creditor was an action against the fiduciary personally. The enactment of § 52-202 provided an additional remedy for the creditor. It did not change the nature of obligation from a personal one to an estate obligation, it merely conferred an additional remedy upon the creditor. ¹

Burke v. Terry, 28 Conn. 414, is authority for the proposition that a claim against an administrator for legal services rendered in the settlement of an estate does not make the provider of those services a creditor of the estate. In Burke, the court declared that such a creditor is not aggrieved and, therefore, has no right to appeal. The court noted that such a claimant has a perfect remedy against the fiduciary, his debtor, and may sue him without delay for whatever sum is due from him. Burke v. Terry, supra, 415-16. Sophia Miller's Appeal from Probate, 20 Conn.Sup. 179, illustrates the vitality of the Burke decision, despite its antiquity. Sophia Miller appealed from the orders accepting the final account and distribution on the ground that they contained no provision for financing her care for the rest of her natural life. The administrator had so obliged himself to Miller in a written contract in consideration of her withdrawal of her objections to the probate of the will. The court found that this obligation was personal to the administrator, and did not obligate him in a representative capacity. The court thereafter concluded that the obligation did not make Miller either a creditor of the estate or a beneficiary under the will and, hence, that she was without standing to appeal.

An earlier case, Ballard v. Ballard, 13 Conn.Sup. 400, establishes the standing of an executrix to appeal from the Probate Court's disallowance of part of the sums requested in her final account for the payment of legal fees advanced and paid for out of her personal funds. The estate denied that the plaintiff was aggrieved in her capacity as executrix. The court determined that the status of the executrix was not that of a creditor, but of one seeking indemnity. It further noted that the account in which the fiduciary seeks allowance for his expenditures is not between him individually and the estate, but is between him in his representative capacity and the...