Miller v. Mcnamara.

• Decision Date: 03 May 1949
• Citation: 135 Conn. 489,66 A.2d 359
• Court: Connecticut Supreme Court
• Parties: MILLER v. McNAMARA.

135 Conn. 489

66 A.2d 359

MILLER

v.McNAMARA.

Supreme Court of Errors of Connecticut.

May 3, 1949.

Appeal from Superior Court, Fairfield County; Comley, Judge.

Action by Alice McNamara Miller, on whose death William J. Miller, as administrator of deceased's estate, was substituted as plaintiff, against Anna G. McNamara, individually and as administratrix of the estate of Thomas J. McNamara, deceased, for a judgment declaring certain probate court orders and decrees, made in settlement of the estate, null and void, and enjoining defendants from setting them up in defense of the action or further proceedings in the probate court. From a judgment for plaintiff after trial to the court, defendant appeals.

No error.

Edward L. Reynolds, New Haven, with whom was John J. Kinney, Jr., New Haven for appellant (defendant).

Freeman Light, South Norwalk with whom was Leon K. Paris, South Norwalk, for appellee (plaintiff).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and O'SULLIVAN, JJ. (Judge P. B. O'SULLIVAN of the superior court sat for Judge DICKENSON).

MALTBIE, Chief Justice.

The principal question presented in this case is whether a legatee in a will is entitled to equitable relief where, the existence of the will not being known, administration was granted upon the estate as intestate and it was settled as such. The action was brought by a sister of the decedent to whom a bequest of $4000 was given in the will; she died and the administrator upon her estate was substituted as plaintiff, but we shall refer to the sister as the plaintiff. The complaint based upon allegations of fraud and mistake, sought a judgment that the decrees of the Probate Court made in the settlement of the estate are null and void, and that the defendant is enjoined from setting them up in defense of this action or to further proceedings in the Court of Probate, with other relief. The trial court found that there was no such fraud as was alleged in the complaint but that the decrees in the administration of the estate as intestate were the result of accident and mistake. It rendered judgment for the administrator upon the plaintiff's estate and the defendant has appealed.

One of the allegations of the complaint was that the Probate Court permitted the settlement of the estate as intestate because of its mistaken belief that the deceased left no will. The conclusions of the court are well within the scope of that allegation and there was no variance.

The trial court's findings of fact are not questioned. Thomas J. McNamara, the deceased, in 1934 executed a will in the office of an attorney. It made substantial bequests to the testator's blood relatives, including the plaintiff. The deceased informed the attorney that he and his wife had married late in life, that she had property of her own and that she knew he was going to leave a substantial part of his estate to other members of his family; and he asked the attorney to keep the will. It was placed in the attorney's safe. The deceased did not tell his wife that he had made it and she did not know of it. The attorney did not represent the deceased in any other legal matter. The latter died January 2, 1936, leaving no lineal descendants, but two sisters, of whom the plaintiff is one, three brothers, a niece, and his widow, the defendant. In his will he made bequests to all of these persons except the defendant. He had been for many years a member of the New Haven police force. When he died obituary notices were printed, as well as a special article, in New Haven newspapers. The attorney did not, however, learn of his death until December, 1940. Meanwhile, the defendant applied for administration on the estate, she was appointed administratrix and the estate was settled as intestate. The estate, consisting of money and a one-half interest in certain real estate owned by her and the deceased, was distributed to her. The probate proceedings were based upon a mistaken belief that the deceased had left no will. The defendant used a part of the property received by her from the estate to pay off a mortgage on the real estate and for her living expenses.

When in December, 1940, the attorney learned of the death of the deceased, he immediately called upon the defendant and showed her a copy of the will. On the same day she went with him to see the plaintiff and the niece of the deceased, who, like the plaintiff, had not known of the existence of the will; the defendant told them that she would see that the will was probated and its provisions carried out; and she signed a waiver of notice of an application for the probate of the will which the attorney prepared. When the application was presented to the Probate Court, the judge refused to receive it on the ground that, as the estate had been administered and distributed, he had no jurisdiction to entertain the application; and later the judge told the defendant that she need not worry about the will and need do nothing more as to carrying out its provisions. Thereafter, she retained the estate as her own. She did not inform the attorney of her change of mind. In January, 1942, a writ was prepared in the attorney's office in which three of the legatees named in the will joined as plaintiffs, but the action was never commenced. The plaintiff relied upon the statement of the defendant that she would see that the provisions of the will were carried out. The plaintiff took no action to protect her rights until December, 1945, when the present suit was brought. The defendant did not offer proof at the trial of any unusual hardship which would result from the probate of the will, beyond that which would have resulted at any time, and the delay in bringing the present action caused her no substantial prejudice.

The facts establish a clear case of mistake lying at the very basis of the decrees of the Probate Court made in the settlement of the estate as intestate. Clearly the plaintiff was not guilty of any negligence which would preclude relief. A mistake such as this would entitle the plaintiff to relief in equity against an ordinary judgment. Kalinick v. Collins Co., 116 Conn. 1, 7, 163 A. 460; Folwell v. Howell, 117 Conn. 565, 568, 169 A. 199. In the Folwell case, 117 Conn. at page 569, 169 A. at page 199, we held that, in this state at least, equity had in general the same power to grant relief against probate decrees as against ordinary judgments. The action in that case was, however, based upon fraud, and the defendant in this case contends that equity can relieve against decrees of a Probate Court only on the ground of fraud. She relies largely upon § 646g of the 1943 Supplement to the General Statutes, Rev.1949, § 6817, which reads in part: ‘All proper orders, judgments and decrees of courts of probate, rendered after due notice and from which no appeal is taken, shall be conclusive and shall be entitled to full faith, credit and validity and shall not be subject to collateral attack, except for fraud.’ This section was an amendment by way of substitution for § 4769 of the 1930 Revision of the General Statutes. Public Acts, 1943, Chap. 343. Section 4769, as far as material to our inquiry, reads: ‘* * * no order made by a court of probate upon any matter within its jurisdiction shall be attacked collaterally except for fraud, or set aside save by appeal.’ The act originated in the revision of the probate law of this state made by the General Assembly at its session in 1885. Public Acts, 1885, Chap. 110, § 6. The provision was, no doubt, intended to codify into the probate law our decision in Bulkley v. Andrews, 39 Conn. 523, decided in 1873, a part of one paragraph of the syllabus of which reads: ‘A decree of a court of probate settling an administration account cannot be attacked collaterally except for fraud.’ The claim of the plaintiff in that case was that he had delivered certain goods belonging to an estate of which he was executor to the defendant on an agreement that they would be returned if needed to complete the settlement of the estate, that the Probate Court had approved an account made in its settlement in which the plaintiff had received certain credits, including expenses incurred in defending against an appeal taken to the Superior Court from the decree of the Probate Court approving the will, and that the defendant had refused to redeliver the property to enable the plaintiff to secure the amount due him under the account. The defendant claimed that the incurring of the expenses was not justified and that the allowance of the account was procured by fraud. The trial court in its charge to the jury, ...