Feigner v. Gopstein

• Decision Date: 26 May 1953
• Citation: 139 Conn. 738,97 A.2d 267
• Court: Connecticut Supreme Court
• Parties: FEIGNER et al. v. GOPSTEIN et al. In re FEIGELSON'S ESTATE. Supreme Court of Errors of Connecticut

Page 267

97 A.2d 267

139 Conn. 738

FEIGNER et al. v.GOPSTEIN et al.In re FEIGELSON'S ESTATE.

Supreme Court of Errors of Connecticut.

May 26, 1953.

Henry C. Campbell and Walter F. Torrance, Waterbury, for appellants.

Herman M. Levy, New Haven, for the appelleeHanna G. Gopstein.

Charles A. Harrison, New Haven, with whom, on the brief, was Milton G. Harrison, New Haven, for appelleesAbram Gopstein et al.

Before BROWN, C. J., and BALDWIN, INGLIS and O'SULLIVAN, JJ.

INGLIS, Associate Justice.

This is an appeal to the Superior Court from the decree of a Probate Court ordering the distribution of assets of the estate of Benjamin Epstein pursuant to the eleventh paragraph of his will.The appeal was taken by John S. Feigner as administrator of each of two estates, and he will hereinafter be called the plaintiff.One group of defendants filed a plea to the jurisdiction and another group a motion to erase the appeal.Both of these alleged that the motion for appeal did not sufficiently state the interest of the plaintiff.The plea was sustained and the motion was granted.From the judgment dismissing the appeal the plaintiff has appealed to this court.

The essential allegations of the motion for appeal are the following: The plaintiff is the administrator of the estates of Rachael Feigelson and Shlioma Feigelson, who were the children of Sarah Mindel(Feigelson).Those estates 'are entitled to the income set aside by the Trustee for Sarah Mindel from January 1, 1944, and to one-third of the entire principal balance under the Trust established by said Paragraph Eleventh for Sarah Mindel and her children.'The decree appealed from ascertained the distributees of income and principal under the eleventh paragraph of the will, and the estates represented by the plaintiff were not included among the distributees named in the order.The plaintiff is thereby aggrieved.

Neither the plea to the jurisdiction nor the motion to erase alleged that the court was without jurisdiction because the appellant was not actually aggrieved by the probate decree.They were grounded solely on the claim that the motion for appeal did not comply with the requirements of § 7075 of the General Statutes.This distinction may be made clearer by comparing the state of the pleadings in the present case with that in Sacksell v. Barrett, 132 Conn. 139, 142, 43 A.2d 79.In that case the plea alleged facts showing affirmatively that the appellant was not aggrieved by the decree and consequently the question was whether the court had jurisdiction of the subject matter of the appeal under § 7071 of the General Statutes.When it appears on the face of the record that an appellant is not aggrieved by the decree appealed from, his appeal is void.When he has a grievance but has failed to state his interest in his motion for appeal as required by § 7075, his appeal is merely voidable.Pavlick v. Meriden Trust & Safe Deposit Co., Conn., 97 A.2d 265;Orcutt's Appeal, 61 Conn. 378, 381, 24 A.2d 276.

Section 7075 reads: 'In each appeal from probate * * * the interest of the appellant shall be stated in the motion for appeal, unless such interest shall appear on the face of the proceedings and records of such court of probate.'We have recently held that, if an appellant intends to rely upon portions of the probate records to show his interest pursuant to the last clause of the statute, he must annex to his motion for appeal copies of the pertinent probate records or at least incorporate them by making specific reference to them.Exchange Buffet Corporation v. Rogers, 139 Conn. 374, 377, 94 A.2d 22.In the present casethe plaintiff did not annex to his motion for appeal or incorporate therein by reference any of the probate records.Accordingly, the question before us narrows down the this: Did the motion for appeal state the 'interest' of the appellant adequately to comply with the statute?

The interest required to be stated by § 7075 is an interest in the subject matter of the decree appealed from.To have such an interest a party must (1) have a legal, as distinguished from a sentimental, interest in the estate involved in the decree and (2) that interest must have been adversely affected by the decree.Exchange Buffet Corporation v. Rogers, supra;Dickerson's Appeal, 55 Conn. 223, 229, 10 A. 194, 15 A. 99.We must examine the motion for appeal filed by the plaintiff to determine whether it sets forth both of these elements of 'interest.'

In the first place, it must be noted that the general allegation that the plaintiff is aggrieved is not in itself a sufficient statement of his interest.It sets forth only a conclusion of law which, unless it is supported by facts alleged elsewhere in the motion which show how he is aggrieved, is ineffective.Sacksell v. Barrett, 132 Conn. 139, 147, 43 A.2d 79;Campbell's Appeal, 64 Conn. 277, 292, 29 A. 494, 24 L.R.A. 667.The motion for appeal now before us, however, alleges far more than that legal conclusion.It states that the plaintiff is the administrator of the estates of Rachael and Shlioma Feigelson, and that gives him a standing to act in his representative capacity to protect whatever interest the two estates may have in the decree.Spencer's Appeal, 122 Conn. 327, 331, 188 A. 881;Hennessy v. Denihan, 110 Conn. 646, 650, 149 A. 250.

The...