Kaskel v. Steinberg

• Decision Date: 31 May 1955
• Citation: 114 A.2d 853,142 Conn. 379
• Court: Connecticut Supreme Court
• Parties: Alfred L. KASKEL v. Theresa STEINBERG et al., Executors (ESTATE of Nathan V. STEINBERG). Supreme Court of Errors of Connecticut

Page 853

114 A.2d 853

142 Conn. 379

Alfred L. KASKEL v. Theresa STEINBERG et al., Executors (ESTATE of Nathan V. STEINBERG).

Supreme Court of Errors of Connecticut.

May 31, 1955.

Jack H. Courage, Greenwich, for appellant (plaintiff).

Julius B. Kuriansky, Stamford, for appellees (defendants).

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

DALY, Associate Justice.

The plaintiff appealed to the Superior Court from a decree of the Court of Probate for the district of Greenwich authorizing the defendants to sell real estate. In his motion for appeal he alleged that he was aggrieved. The defendants, by a plea in abatement and to the jurisdiction, alleged that the plaintiff was not, as a matter of law, aggrieved, since he had no pecuniary interest which was injuriously affected by the decree. By his answer the plaintiff denied the allegations contained in the defendants' plea. The Superior Court found the issues for the defendants upon the plea and dismissed the appeal. The plaintiff has appealed to this court.

In his first assignment of error the plaintiff claims that the trial court erred in making a finding. Ordinarily, a finding is essential to test the conclusions reached upon an issue raised by a denial of a material allegation contained in a plea to the jurisdiction. Mendrochowicz v. Wolfe, 139 Conn. 506, 509, 95 A.2d 260; State v. Chin Lung, 106 Conn. 701, 717, 139 A. 91. Furthermore, the plaintiff requested the court to make a finding and thereby induced it to do that of which he now complains. His claim is without merit. Taylor v. Corkey, 142 Conn. 150, 153, 111 A.2d 925; Housing Authority of City of Bridgeport v. Pezenik, 137 Conn. 442, 448, 78 A.2d 546. In his second assignment of error he claims that the court erred in finding certain facts set forth in the finding. The change sought would not directly affect the ultimate facts upon which the judgment depends. As no useful purpose would, therefore, be served by making the correction, it is not made. Cole v. Associated Construction Co., 141 Conn. 49, 51, 103 A.2d 529; Maltbie, Conn.App.Proc., § 93. In other assignments of error the plaintiff contends that the trial court erred in failing to find certain facts. No statement of facts was contained in his draft finding. The draft finding should contain, in consecutive, numbered paragraphs, a statement of the relevant and material facts proven. Practice Book § 389. As the facts claimed do not appear in the draft finding, these claimed errors are not considered. Jordan v. Apter, 93 Conn. 302, 305, 105 A. 620; Maltbie, Conn.App.Proc., § 73.

The finding contains the following facts: Nathan V. Steinberg died on March 20, 1953, and thereafter the defendants qualified as executors of his estate. At the time of his death, he was the owner of real estate in the city of Stamford. On October 28, 1953, the defendants agreed in writing to sell the real estate to George M. Horn for $125,000, subject to the approval of the Probate Court. On December 1, 1953, after public notice, a hearing upon the defendants' petition for approval of the Horn contract was had by the Probate Court, and an offer by the plaintiff to purchase the property for $132,500 or, in the alternative, to bid for it at public sale was submitted to the court. The hearing was continued to December 8, 1953; at that time the plaintiff withdrew his offer to purchase the property for $132,500, and the judge of probate stated that he would authorize its sale to Horn for $125,000. However, a written order authorizing the sale was never entered.

Thereafter, the plaintiff purchased the interest of Horn in the contract, paying him a substantial sum for an assignment of it. The Probate Court ordered another hearing, which was held on February 18, 1954. At this hearing, George S. Gregory, through his attorney, submitted an offer to purchase the property for $150,000, and the plaintiff stated that he would pay $155,000 for it. The Probate Court did not approve a sale to either Gregory or the plaintiff. It continued the hearing until March 1, 1954, when it requested that each interested party submit his best offer to the defendants. The highest offer was $185,000, submitted by Gregory. The plaintiff did not submit an offer, and the judge of probate stated that an order approving a sale to Gregory for $185,000 would be entered. Then the plaintiff offered to pay $190,000 for the property. The Probate Court refused to approve a sale to the plaintiff for $190,000. On March 3, 1954, the defendants entered into a contract with Gregory for the sale of the property to him and filed a surety bond, and the Probate Court entered an order authorizing the sale to him for $185,000. It is from this order that the present appeal was taken.

The plaintiff claims that the Superior Court erred in concluding that, since there was no recorded order in existence on December 8, 1953, authorizing a sale to Horn, the plaintiff could not, and did not, acquire a pecuniary interest in the decedent's estate by obtaining an assignment of the Horn contract; that he did not, in any manner, acquire a pecuniary interest in the estate; and that he is not an aggrieved person. He maintains that, since he paid a substantial sum for an assignment of the Horn contract, incurred expenses in improving the real estate in reliance upon his status as assignee of that contract, and was the highest bidder for the property, he acquired a pecuniary interest in the decedent's estate. He claims that, therefore, he is an aggrieved person and that the Superior Court erred in dismissing his appeal from the...