Folwell v. Howell

• Decision Date: 08 November 1933
• Citation: 117 Conn. 565,169 A. 199
• Court: Connecticut Supreme Court
• Parties: FOLWELL et al. v. HOWELL et al.

169 A. 199

117 Conn. 565

FOLWELL et al. v. HOWELL et al.

Supreme Court of Errors of Connecticut.

November 8, 1933

Appeal from Superior Court, Fairfield County; Newell Jennings Judge.

Action by Kate Folwell and others against Louis B. Howell and others to recover damages and equitable relief for fraud and imposition exercised in procuring the execution of a will and its admission to probate. The Superior Court sustained a demurrer to the complaint, judgment was entered for defendants on plaintiffs' failure to plead further, and plaintiffs appeal.

Error judgment set aside, and cause remanded.

Joseph A. Gray, of Norwalk, for appellants.

William F. Tammany, of South Norwalk, for appellees.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

MALTBIE, Chief Justice.

The complaint in this action alleges that the plaintiffs are the sole heirs at law of Alice F. Burritt who died May 6, 1930 leaving a will which has been admitted to probate and in which the defendant Louis B. Howell was named executor; that this will was procured by the fraud, imposition, and undue influence exercised by him and the other defendant, his wife, upon the deceased, the details of which are set forth at considerable length and with some redundancy; that the plaintiffs knew little or nothing about the property, mental condition, and affairs of the deceased, or the daily attendance of the defendants upon her and did not realize any need to watch their interests as her heirs at law, without fault upon their part; that the defendant executor has made no proper accounting under the so-called will " which the defendant fraudulently procured to be probated" ; that thereby the defendants have become fraudulently possessed of the estate of the deceased, which they have dissipated or intend to dissipate; and that the time for taking an appeal from the decree admitting the will to probate had elapsed before the plaintiffs learned of the fraud practiced by the defendants in procuring the execution of the will " so made by the defendants and set out herein and so foisted upon the deceased, the Court of Probate and the plaintiffs." The relief claimed is damages, an injunction restraining the defendants from meddling further with the estate and property of the deceased and requiring them to place that property in the custody of the superior court through its clerk; that the superior court make a proper settlement of the estate; that the court adjudge the will to be null and void, restraining the court of probate from entertaining any further proceedings with reference to it or the estate; and that it command the court of probate to dismiss all proceedings now pending before it without further hearing or consideration.

The defendants demurred to the complaint upon several grounds, to the general effect that the rights of the plaintiffs were concluded by the decree of the court of probate admitting the will to probate; that they have no right or title to any property of the estate; that any cause of action which might be proven under the allegations of the complaint belongs to the executor and not to them; and that they have adequate remedy for any wrong suffered by them in the court of probate; and the defendants also demurred to each of the prayers for equitable relief upon the ground that the matters alleged do not justify them. The trial court sustained the demurrer, and the plaintiffs, without pleading further, moved for final judgment, which was accordingly entered in favor of the defendants.

The demurrer was addressed to the complaint as a whole and it should have been overruled if any cause of action could be proven under the allegations made. Blakeslee v. Board of Water Commissioners, 106 Conn. 642, 649, 139 A. 106, 55 A.L.R. 1319. The complaint is in artificially drawn, but it sufficiently appears that the real redress which the plaintiffs are seeking is relief against the admission to probate of a will invalid because of fraud, imposition, and undue influence exercised upon the testator and because of the subsequent acts of the defendants. To that end they invoke the equitable powers of the superior court. The power of equity to relieve against judgments is thus stated in one of our earlier decisions: " The general principle on this subject, and which controls our opinion in regard to it, is well stated, by Judge Story, in his Commentaries upon Equity Jurisprudence. ‘ In all cases, where by accident, mistake, fraud or otherwise, a party has an unfair advantage in proceeding in a court of law, which must necessarily make that court an instrument of injustice, and it is, therefore, against conscience that he should use that advantage, a court of equity will interfere, and restrain him from using the advantage which he has thus improperly gained." ’ Tucker v. Baldwin, 13 Conn. 136, 144, 33 Am.Dec. 384. In Allis v. Hall, 76 Conn. 322, 330, 56 A. 637, 640, our law is summed up in this way: " An examination of the many cases involving an application of this principle discloses that fraud, collusion, accident, mistake, surprise, and ignorance of the defense, when the negligence of the party is not one of the producing causes, are frequently recognized as creating situations justifying equitable interference, where it is also shown that a meritorious defense has been lost thereby, that the execution of the judgment would be against equity and good conscience, and that there is no other adequate remedy."

It is true that the power of a court of general equitable jurisprudence to interfere with the decrees of a court of probate has been denied; 5 Pomeroy's Equity Jurisprudence, § 2064; but we are satisfied that such power exists. Johnson v. Waters, 111 U.S. 640, 667 4 S.Ct. 619, 633, 28 L.Ed. 547, 556; Gill v. Pelkey, 54 Ohio St. 348, 43 N.E. 991; Baker v. O'Riordan, 65 Cal. 368, 4 P. 232; Silva v. Santos, 138 Cal. 536, 541, 71 P. 703; Froebrich v. Lane, 45 Or. 13, 21, 76 P. 351, 106 Am.St.Rep. 634; Benson v. Anderson, 10 Utah, 135, 37 P. 256. In Hall v. Hall, 91 Conn. 514, 100 A. 441, the plaintiff sought to recover damages upon the ground that he had been deprived of his inheritance by the acts of the defendants in fraudulently procuring the execution of a pretended will and in securing its admission to probate; and while we held that the plaintiff could not recover upon the cause of action alleged because the decree of the court of probate admitting the will to probate was, until successfully attacked, a sufficient defense, we pointed out (page 520 of 91 Conn., 100 A. 441, that the complaint contained sufficient allegations upon which to found such an attack, had...