Lamb v. Szabo's Estate

• Decision Date: 13 October 1967
• Docket Number: No. 128865,128865
• Citation: 235 A.2d 849,27 Conn.Supp. 247
• Court: Connecticut Superior Court
• Parties: Gerald A. LAMB, Treasurer, v. ESTATE of Theresa SZABO.

Page 849

235 A.2d 849

27 Conn.Supp. 247

Gerald A. LAMB, Treasurer, v. ESTATE of Theresa SZABO.

No. 128865.

Superior Court of Connecticut, Fairfield County, at Bridgeport.

Oct. 13, 1967.

Harold M. Mulvey, Atty. Gen., and Robert L. Hirtle, Jr., and F. Michael Ahern, Asst. Attys. Gen., for plaintiff.

Webb & Gall, Bridgeport, Berdon, Berdon & Young, and Joseph Glass, New Haven, for defendants.

SHEA, Judge.

Theresa Szabo died on November 1, 1961, a resident of Fairfield, Connecticut. Under her will, dated March 12, 1958, the residue of her estate was bequeathed in equal shares to Elizabeth Hamosi, a sister of the decedent who resides in Hungary, and to Zsigmond Halasz, a brother of the decedent who resides in the Ukraine, a state of the Union of Soviet Socialist Republics. The account of the executor indicated that the sum of $6590.45 for each of these legatees remained on hand for distribution as of June 20, 1966. After a hearing in which the state treasurer participated as a statutory trustee under the provisions of General Statutes § 45-278, and in which Connecticut counsel appeared in behalf of a New York law firm which claimed to be the attorney in fact of the two legatees, the Probate Court for the district of Fairfield ordered distribution of one-third of each legacy to the named legatees. In entering such an order, the Probate Court overruled the claim of the state treasurer that the funds should be paid to him to be held for the benefit of the legatees in accordance with the provisions of General Statutes § 45-278. The treasurer has appealed from this order.

Upon the appeal, a stipulation was filed reciting the record before the Probate Court and waiving the right to present additional evidence. It appears, therefore, that the evidence upon which the Probate Court acted is the same as that before this court.

General Statutes § 45-278, sometimes referred to as the 'iron curtain statute,' reads as follows: 'Property due person residing outside United States. When it appears that a legatee, distributee, cestuior beneficiary not residing within the territorial limits of the United States of America or any territory or possession thereof would not have the benefit or use or control of property due him and that special circumstances make it desirable that delivery to him be deferred, any court of probate may order that such property be converted into available funds and paid to the state treasurer, to be invested by him at his discretion and, together with any proceeds thereof, to be held subject to such further order as such court may enter, provided the reasonable fees, as allowed by such court, of the attorney for any such legatee, distributee, cestui or beneficiary whose funds are payable to the state treasurer hereunder shall be considered a lien thereon and shall be paid by the fiduciary having such funds in charge to such attorney prior to payment to the state treasurer.'

The Probate Court construed the statute as imposing the burden of proof upon the state treasurer to show that the legatees would not have the 'benefit or use or control' of their legacies. It was also concluded, however, regardless of where the burden lay, that the evidence established that the legatee in the Ukraine would have the 'benefit or use or control' of his legacy. The same conclusion was reached in regard to the legatee in Hungary, largely upon the basis of past experience of the court in or dering distribution of estates to recipients living in that country. No evidence was presented by either party concerning the law of Hungary in respect to inheritance or the actual practice followed.

I

The function of the Superior Court in this appeal is not to determine afresh the issues already decided by the Probate Court but to review the action of the Probate Court to see whether or not the discretion vested in it has been abused. 'In any appeal from probate the Superior Court is exercising a limited statutory jurisdiction. * * * It is true that in some types of probate appeal, such, for instance, as an appeal from a decree admitting a will to probate, the Superior Court not only hears all relevant and material evidence but enters its judgment affirming or reversing the probate decree without regard to, or consideration of, the action which the Probate Court had taken. * * * In certain matters, however, the Probate Court is granted discretion as to the action it should take. In other words, primary jurisdiction to exercise a discretion is vested in it. In such instances, the 'Superior Court, on appeal, could go no further than to determine whether that descretion had been legally and reasonably exercised." Baldwin v. Tradesmens National Bank, 147 Conn. 656, 659, 165 A.2d 331, 333. ' (T)he superior court cannot exercise a discretion vested in the court of probate; it can only review the exercise of that discretion to determine whether it has been reasonably and legally exercised. * * * The superior court cannot exercise a primary jurisdiction which by statute is reposed in the Courts of Probate.' Reiley v. Healey, 122 Conn. 64, 79, 187 A. 661, 667.

It has been held expressly that the application of the provisions of General Statutes § 45-278 involves the exercise of discretion by the Probate Court. 'As we have indicated, the statute vests in the Probate Court primary jurisdiction to determine whether a resident of a foreign country would receive the use and benefit of a legacy distributed to him, and on appeal from that court the Superior Court could go no further than to determine whether that discretion was legally and validly exercised.' Nikitiuk v. Pishtey, 153 Conn. 545, 554, 219 A.2d 225, 230.

Therefore, regardless of the result which might be reached by this court upon the evidence presented if the matter were being heard ab initio, the decision of the Probate Court must be affirmed unless it was so unreasonable as to constitute an abuse of discretion.

II

The Probate Court construed the statute as imposing the burden of proof upon the state treasurer, since he opposed the distribution. This conclusion is consistent with the language of the statute: 'When it appears that a legatee * * * would not have the benefit or use or control of property due him and that special circumstances make it desirable that delivery to him be deferred * * *.' § 45-278. 'It is an elementary rule that, whenever the existence of any fact is necessary in order that a party may make out his case or establish his defense, the burden is on such party to show the existence of such fact.' Citizens Assn. v. City of Bridgeport, 84 Conn. 383, 387, 80 A. 203, 205. If the legatees involved had lived in some more friendly country, presumably the state treasurer would not claim that such legatees would have to establish affirmatively that they would have the benefit and control of their legacies.

In the case of Nikitiuk v. Pishtey, supra, relied upon by the plaintiff, it was held that the burden of proof rested upon the heirs who were petitioning to modify an earlier decree of the Probate Court. This decree rested upon a finding of the conditions required for application of the statute. The reasoning applied in allocating the burden of proof to the party seeking to establish facts justifying the relief claimed in that case is also pertinent here. For the plaintiff to have prevailed, it was essential that it 'appear' that a legatee residing in the Ukraine or in Hungary 'would not have the benefit or use or control of property due him and that special circumstances make it desirable that delivery to him be deferred'. § 45-278. In the absence of any evidence, the Probate Court could not find the circumstances required for invocation of the statute. "The burden of proof in any proceeding lies at first on that party against whom the judgment of the court would be given if no evidence at all were produced on either side." Wetherell v. Hollister, 73 Conn. 622, 626, 48 A. 826, 827 (quoting Stephen, Digest of Evidence, art. 95); Nikitiuk v. Pishtey, supra, 153 Conn. 552, 219 A.2d 225. The conclusion of the Probate Court that the burden rested upon the plaintiff was in accordance with these principles.

In one of the cases from other states, with similarly worded statutes, is the problem of burden of proof discussed in any depth. In re Birkner's Estate, 90 N.J.Super. 91, 216 A.2d 258; Brizgys v. County Treasurer, 84 N.J.Super. 485, 202 A.2d 709; Wanson's Estate, 419 Pa. 109, 213 A.2d 631; Bokey's Estate, 412 Pa. 244, 194 A.2d 194; Belemecich's Estate, 411 Pa. 506, 192 A.2d 740. In New Jersey, it appears that a statement of legislative purpose was attached to the bill when the statute was enacted which indicated that it should apply where payment to a foreign legatee 'might' be circumvented by confiscation. N.J.Rev.Stat. 3:26-18; N.J.Laws 1940, c. 148. This notation was relied upon to support the application of the statute where it is 'contingently possible' that the legacy would be subject to confiscation in whole or in part. In re Url's Estate, 7 N.J.Super. 455, 71 A.2d 665. In New York, a similar statement of legislative purpose accompanied the bill (Laws of 1939, c. 343), and this was relied upon by some of the surrogate courts to require a construction that a contingent possibility of confiscation would bring the statute into play. Matter of Weidberg's Estate, 172 Misc. 524, 15 N.Y.S.2d 252. A somewhat different view was followed by other surrogate courts. Matter of Blasi's Estate, 172 Misc. 587, 15 N.Y.S.2d 682; Matter of Wells' Will, 204 Misc. 975, 983, 126 N.Y.S.2d 441. In 1960, the New York statute was amended to impose the burden of proof upon an alien beneficiary where it is uncertain that he will have the use, benefit or control of his distributive share. N.Y.S.C.P.A. § 2218. A similar amendment to General Statutes § 45-278 was introduced in the 1967 General Assembly but was not enacted. S.B. 323 (referred to general law committee).

The...