Nikitiuk v. Pishtey

• Decision Date: 05 April 1966
• Citation: 153 Conn. 545,219 A.2d 225
• Court: Connecticut Supreme Court
• Parties: Tupchy M. F. NIKITIUK et al. v. Joseph J. PISHTEY, Administrator c.t.a. (ESTATE of Fred K. NIKITENKO), et al.

Page 225

219 A.2d 225

153 Conn. 545

Tupchy M. F. NIKITIUK et al. v. Joseph J. PISHTEY, Administrator c.t.a. (ESTATE of Fred K.

NIKITENKO), et al.

Supreme Court of Connecticut.

April 5, 1966.

Carl D. Eisenman, Asst. Atty. Gen., with whom were F. Michael Ahern, Asst. Atty. Gen., and, on the brief, Harold M. Mulvey, Atty. Gen., for appellant (defendant state treasurer).

Thomas J. Condon, Ansonia, with whom, on the brief, was Edward J. Donahue, Bridgeport, for appellant (named defendant).

William L. Hadden and David B. Salzman, New Haven, with whom was Herman M. Levy, New Haven, for appellees, (plaintiffs).

Before KING, C.J., and MURPHY, ALCORN, SHANNON and HOUSE, JJ.

HOUSE, Associate Justice.

This appeal is from a judgment of the Superior Court sustaining an appeal from a decree of the Probate Court for the district of Derby. There is no dispute as to the facts relevant to the appeal. The appellees, whom we will hereinafter refer to as the plaintiffs, are two brothers and a niece of Fred K. Nikitenko, whose estate was settled in the Derby Probate Court. By its decree dated December 15, 1959, that court determined that the plaintiffs were the residuary distributees of the estate, that each of them lived in the Kiev Region in the Union of Soviet Socialist Republics, that, if their distributive shares were sent to them, they would not have the benefit or use of the estate due them, and that special circmstances made it advisable that delivery to them be deferred. Accordingly, under § 45-278 of the General Statutes, ¹ it was decreed that, after the payment of $15,000 in legal fees to the plaintiffs' attorneys, the balance be paid to the treasury ² of the state of Connecticut in accordance with the provisions of the state statutes. No appeal was taken from this decree.

Subsequently on May 5, 1960, Charles Recht filed with the Probate Court a petition entitled 'Application for payment to Charles Recht, Esq., as grantee under powers of attorney from Dmitry Kusmich Nikittuk. Maria Fomincha Tupchij and Ivan Kuzmich Nikittuk, residuary legatees under the last will and testament of the deceased, the said residuary shares.' This petition recited the grant of powers of attorney from each of the plaintiffs to Recht, the terms of the December 15, 1959, decree directing distribution pursuant to General Statutes § 45-278, and that the funds thus turned over were subject to the further order of the Probate Court. In prayed for 'an order distributing forthwith to the said three residuary distributees, one-third each of the funds ordered turned over to the State of Connecticut treasury.' Significantly, the petition contained no allegation of any change in circumstances since the December, 1959, decree or that the distributees would now have the benefit or use or control of their respective shares if the court modified, revoked or terminated the 1959 decree, which ordered that distribution be deferred.

By its decree dated June 21, 1961, the Probate Court made a finding, after notice and hearing, that 'no evidence was presented which would in any manner alter or change the status of the original order of distribution made by this Court under date of December 19, 1959'. Additionally the decree stated that it remained the opinion of the court that the distributees would not have the full benefit or use or control of the property and that special circumstances made it advisable that delivery to them be deferred. Accordingly, the application of Charles Recht, 'as grantee under powers of attorney' was denied.

No appeal from this decree was taken by Recht. The three plaintiffs, however, did promptly appeal to the Superior Court from the 1961 decree denying Recht's petition. ³. The only stated reasons of appeal were simply that the June, 1961, decree was 'totally unsupported' by any evidence that the distributtes would not have the full benefit or use or control of the property or that special circumstances made it advisable that delivery of their distributive shares be deferred.

The administrator of the estate denied these allegations of the reasons of appeal. The Superior Court at first denied a motion that the state treasurer be joined as a party defendant but after reargument granted his application. The treasurer thereupon filed an answer also denying the stated reasons of appeal. In addition he filed a special defense. This defense pleaded the terms of the December, 1959, decree, which found that the plaintiffs were residents of a foreign country and would not have the use or benefit of the estate and that special circumstances made it advisable that delivery to them be deferred. It further pleaded that, no appeal having been taken by the plaintiffs from that decree, the decree became final and conclusive by operation of law, and as a result it was not necessary for anyone opposing the plaintiffs' claim to prove the issue of use and benefit of the estate again. The special defense further pleaded that at the hearing on the 1960 petition the burden of proof rested with the plaintiffs to show a change in circumstances and that at this subsequent date they were in a different position than in 1959 with respect to the benefit and use of their legacies, that the decree issued following that hearing showed that the plaintiffs had not sustained this burden of proof, and that in this situation the allegations of the reasons of appeal were immaterial to the questions decided in the June, 1961, decree.

A motion to expunge the special defense was granted. This ruling is the first assignment of error on this appeal. The other assignments are directed to the judgment of the Superior Court which concluded that at the hearing on the 1960 petition the defendants had the burden of proving that the plaintiffs would not have the use and benefit of their legacies and that the defendants failed to sustain this burden. The court sustained the appeal.

On this recital of facts it is obvious that although the controversy has its basis in General Statutes § 45-278, commonly called the 'Iron Curtain Statute' (Comment, 37 Conn.B.J. 513, 514), the appeal to this court primarily presents disputed questions of pleading and procedure. Of these, the paramount one is the question where the burden of proof lay on Recht's 1960 petition for an order terminating the deferment of payment to the plaintiffs. The probate Court held that the burden of proof lay with Recht, and since no evidence was presented which would in any manner alter or change the unappealed 1959 decree, Recht's petition should be denied. As already noted, the plaintiffs' appeal from this decision was limited to the specific claim that the burden of proof was not on the petitioner but rather on anyone opposing the petition, and since the opposition did not prove that the plaintiffs would not now have the use and benefit of the legacies, the Probate Court erred in denying the petition.

By the express provisions of § 45-278, primary jurisdiction to determine that a foreign legatee will not have the benefit or use or control of a legacy is vested in the Probate Court, and, if it so determines, it may order deferment of payment to the distributee and that the funds be held by the state treasurer 'subject to such further order as such court may enter.' In this case, after a hearing in which the plaintiffs participated, that court found that they would not have the use and benefit of their legacies if they were sent to them and directed that payment be deferred. Since the plaintiffs have not taken an appeal from the 1959 decree, the decree was conclusive as to all relevant matters embraced therein. General Statutes § 45-9; Kochuk v. Labaha, 126 Conn. 324, 329, 10 A.2d 755; State ex rel. Beardsley v. London & Lancashire Indemnity Co., 124 Conn. 416, 422, 200 A. 567; Gray v. Goddard, 90 Conn. 561, 567, 98 A. 126; Shelton v. Hadlock, 62 Conn. 143, 151, 25 A. 483. A partycannot litigate in a second action matters already concluded in a prior one. Salem Park, Inc. v. Town of Salem, 149 Conn. 141, 144, 176 A.2d 571. In the absence of new or changed circumstances, matters already litigated between the same parties are res judicata. Willis v. Keenan, 144 Conn. 33, 51, 127 A.2d 56; Bridgeport Hydraulic Co. v. Pearson, 139 Conn. 186, 196, 91 A.2d 778.

The Probate Court having found in the 1959 proceedings that conditions in the U.S.S.R. were such that the plaintiffs would not have the benefit, use and control of any legacy paid to them, a presumption arose that that condition continued to exist. 'The rule * * * that when a personal relation, or state of things, is once established, the law presumes that it continues to exist until the contrary is shown, is too well settled to require discussion.' Bennett v. Agricultural Ins. Co., 51 Conn. 504, 510; Goslee v. Rowe, 114 Conn. 1, 5, 157 A. 267; Pettus v. Gault, 81 Conn. 415, 422, 71 A. 509; Donahue v. Coleman, 49 Conn. 464, 466; 20 Am.Jur., Evidence, § 207; 1 Greenleaf, Evidence (16th Ed.) § 41. In the absence of any rebutting evidence to the contrary, the Probate Court was entitled to rely upon this...