Kiszkiel v. Gwiazda

• Citation: 174 Conn. 176,383 A.2d 1348
• Court: Supreme Court of Connecticut
• Decision Date: 10 January 1978
• Parties: Stanislav V. KISZKIEL et al. v. Henry J. GWIAZDA et al.

Page 1348

383 A.2d 1348

174 Conn. 176

Stanislav V. KISZKIEL et al. v. Henry J. GWIAZDA et al.

Supreme Court of Connecticut.

Argued Nov. 10, 1977.

Decided Jan. 10, 1978.

Harry L. Nair, Hartford, for appellants (defendants).

Jonathan J. Einhorn, New Haven, for appellees (plaintiffs).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JJ.

BOGDANSKI, Associate Justice.

The plaintiffs brought this action seeking a writ of mandamus, a declaratory judgment, and a temporary injunction. The trial court ordered a writ of mandamus to issue against the defendant Henry J. Gwiazda as probate judge for the district of Berlin requiring him to enter an order of distribution in the estate of Joseph Kiszkiel. It also declared that the powers of attorney of the plaintiffs' attorneys-in-fact were valid and that such attorneys-in-fact were entitled to receive from the defendant Walter J. Liss as administrator the distributive shares of the plaintiffs as their duly authorized agents. The defendants appealed from that judgment claiming that the court lacked jurisdiction to direct by way of mandamus the entry of such an order and that the court lacked jurisdiction to determine the manner in which the estate shall be delivered to the rightful heirs.

On December 10, 1973, the defendant probate judge held a hearing on the defendant administrator's final account and application for an order of distribution in the estate of the deceased Joseph Kiszkiel. After that hearing, the Probate Court entered a decree approving, accepting, and allowing the accounting. Although there was no dispute as to who the heirs were, no order was made with respect to ascertaining the heirs of the estate of the decedent or with respect to ordering the distribution of the estate.

The plaintiffs are Stanislav Vikentievich Kiszkiel and Marianna Vikentievna Petriman, the sole heirs-at-law of the decedent and residents of the Soviet Union. The plaintiffs' powers of attorney were filed in the office of the defendant judge of probate in July, 1975. By the terms of those powers of attorney, the New York law firm of Wolf, Popper, Ross, Wolf and Jones was appointed as the plaintiffs' attorney with full power of substitution for the purpose, among others, of receiving and accepting all shares in money or property from the estate of Joseph Kiszkiel. ¹ In other estates probated in the district of Berlin, distribution to heirs residing in eastern European countries was made in the respective foreign country by the defendant Judge Gwiazda in person. The defendants contend that General Statutes § 45-272 ² mandates personal delivery of the distributive shares of an estate to the heirs.

The defendants first claim that the court lacked jurisdiction by way of mandamus to direct the entry of discretionary orders by the Probate Court.

With respect to that claim, it is appropriate to note that the trial court did not order the probate judge to ascertain the heirs or distributees of the decedent. That discretionary determination is exclusively within the jurisdiction of the Probate Court. Rather, the trial court simply ordered the Probate Court to enter an order of distribution. ³

" ' The writ of mandamus is designed to enforce a plain positive duty, upon the relation of one who has a clear legal right to have it performed, and where there is no other adequate legal remedy.' Milford Education Assn. v. Board of Education, . . . (167 Conn. 513, 518, 356 A.2d 109), citing State v. New Haven & Northampton Co., 45 Conn. 331, 343." Light v. Board of Education, 170 Conn. 35, 37, 364 A.2d 229. Consequently, a writ of mandamus will lie only to direct performance of a ministerial act which requires no exercise of a public officer's judgment or discretion. Ibid. Nothing in the judicial character of the probate judge places him beyond the reach of a writ of mandamus when it concerns his ministerial duties. State ex rel. Bonoff v. Evarts, 115 Conn. 98, 160 A. 294; Williams v. Cleaveland, 76 Conn. 426, 50 A. 850; Taylor v. Gillette, 52 Conn. 216, 218; Elderkins' Appeal from Probate, 49 Conn. 69.

To enter an order of distribution does not require an exercise of judgment or discretion. It thus follows that the probate judge here failed to perform a ministerial duty required by General Statutes § 45-272, i. e., to enter an order of distribution. The proper method of redress was by way of mandamus.

The defendants next claim that the Superior Court lacked jurisdiction to entertain a declaratory judgment action. An action for declaratory judgment is a special proceeding under General Statutes § 52-29 implemented by §§ 308 and 309 of the Practice Book. ⁴ Section 309(b) of the Practice Book requires the existence of an actual...