Oles v. Furlong

• Decision Date: 29 January 1948
• Citation: 134 Conn. 334,57 A.2d 405
• Court: Connecticut Supreme Court
• Parties: OLES v. FURLONG et al.

134 Conn. 334

57 A.2d 405

OLES

v.FURLONG et al.

Supreme Court of Errors of Connecticut.

Jan. 29, 1948.

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

Application by Frank P. Furlong and others, executors of the estate of Harry S. Bond, deceased, for authority to sell principal asset of estate to another executor. From a decree of the Probate Court denying the application, Edmund J. Oles, one of the executors, appealed, the case was referred to a state referee, and from a judgment of the Superior Court accepting the report of the referee, dismissing the appeal and affirming the decree of the Probate Court, Edmund J. Oles appeals.

No error.

Louis M. Schatz and S. Michael Schatz, both of Hartford (Nathan A. Schatz and Arthur H. Schatz, both of Hartford, on the brief), for appellant.

Pomeroy Day and William K. Cole, both of Hartford, for appellees.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.

MALTBIE, Chief Justice.

This is an appeal by the plaintiff from a judgment of the Superior Court dismissing an appeal from a decree of the Probate Court for the district of Hartford in the matter of the estate of Harry S. Bond. On May 7, 1941, four of the executors named in the will of Bond survived, one of whom was Willard B. Rogers. On that day the other three made an application to the Probate Court in which they recited that the principal assets remaining in the estate were certain shares of stock in The Hotel Bond Company; that, in order to pay claims against the estate presented and approved and to settle it, it was necessary to sell the stock; that the executors had received only two offers for its purchase, one of which was from their coexecutor Rogers; and that in the opinion of the applicants the acceptance of that offer would be in the best interests of the estate; and they asked that they or some other suitable person be authorized and directed to accept the offer and transfer the stock to him. On June 30, 1941, the court continued the hearing to September 8, 1941, stating in the order that written proposals for the purchase of the stock would be received at the court if filed before September 5, 1941, and outlining at length the terms to which such offers should conform. Three proposals were filed, one by Rogers. On September 8, 1941, the court made an order in which it found that only his offer met the terms stated in the order of June 30, 1941; that a written application had been made by parties beneficially interested in the estate for an independent expert appraisal of the stock; and that, as Rogers was interested in the estate as one of the executors, such an appraisal should be made; and it ordered that the executors cause the stock to be appraised by a certain appraisal company and that the matter be further continued to a date to be fixed by the court after the appraisal had been filed. Finally, on March 16, 1942, the court made the decree from which the appeal was taken. No copy of that decree is in the file, but in the report of the state referee, to which reference is hereinafter made, it is stated that in it the court denied the application of the three executors that it authorize and direct the transfer of the stock to Rogers and directed that the executors file a petition based upon § 4951 of the General Statutes, asking the court to appoint a disinterested person to sell it, at which sale Rogers or any other executor or executors might purchase it.

The plaintiff, one of the executors and also a legatee under the will of Bond, appealed to the Superior Court. In that court there were extended hearings, but the presiding judge died before reaching a decision. Thereafter, the parties stipulated that the matter should be referred to a state referee and that the evidence and exhibits presented to the court might be used by him with the same effect as though introduced before him. The case was referred to a state referee, but in his report he went little further than to recite the proceedings before the Probate Court which we have reviewed above, adding only one fact material to the issues as argued before us: The application to the Probate Court for authority and direction to transfer the stock to Rogers was made in pursuance of an agreement, to which the executors and the residuary legatees of the estate were parties, that the stock would not be sold without submitting the terms of the sale to the court with notice to interested parties and after hearing. The plaintiff filed a remonstrance to the report. In it he asked to have the matter recommitted to the referee on the ground that he desired to present a claim of law that the Probate Court erred in denying the application to transfer the stock to Rogers without a finding that the offer was inadequate and not in the best interests of the estate. He also requested that various additions be made to the report, but these were based on certain exhibits which have been made a part of the record before us and, as far as material, have been used in reaching our decision. The Exchange Buffet Corporation, to which the interests of certain residuary legatees have been assigned, filed a demurrer to the remonstrance. The trial court sustained the demurrer, accepted the report and entered judgment dismissing the appeal. The parties appearing before us are the plaintiff and the Exchange Corporation.

Much of the difficulty presented in this case is due to the uncertainty as to the statutory basis upon which the executors made the application to the Probate Court for authority to make the transfer to Rogers and to the very unusual method adopted by the court in dealing with it. When the application was made, there were two statutes authorizing courts of probate to order the sale of personal property of the estate of a deceased person. One provided: ‘The court of probate, before the final settlement of any estate, may order the sale of the credits and choses in action belonging thereto, and may at any time order the sale of personal estate * * * as it shall find for the interest of such estate, in such manner and after such notice as it shall judge reasonable, and such court, in making orders for the sale of such property, may order the same to be sold at public or private sale at the discretion of the person authorized to make such sale.’ General Statutes, § 4944. The other statute provided: ‘The court of probate may, on the written application of an executor, administrator * * * upon hearing after public notice, authorize another person to sell any property belonging to such estate ordered sold * * *. Public notice of such sale shall be given, and at any sale so made the executor, administrator * * * may be a purchaser.’ General Statutes, § 4951.

In Beecher v. Buckingham, 18 Conn. 110, 44 Am.Dec. 580, decided in July, 1846, the issue involved the question whether one of two administrators had the power to assign a nonnegotiable chose in action which formed part of an estate. It was claimed by one of the parties (18 Conn. at page 116, 44 Am.Dec. 580) that the administrators, even acting jointly, could not make a valid assignment of such a chose in action, ‘at least without the order of the court of probate.’ We held (18 Conn. at page 120, 44 Am.Dec. 580) that title to the personal property of a deceased person vested in the executor or executors of his estate; that they could dispose of it at pleasure, ‘being responsible for the faithful execution of the trust’; that within this principle fell choses in action, as well as other personal property; that one of two or more executors might make the sale as fully as if all joined in the act of transfer; and that the same principles applied to administrators. See Buckingham's Appeal, 60 Conn. 143, 159, 22 A. 509; Blodgett v. Bridgeport City Trust Co., 115 Conn. 127, 144, 161 A. 83. The opinion in the Beecher case contains this statement (18 Conn. at page 121, 44 Am.Dec. 580): ‘Ordinarily, a faithful representative would prefer collecting the debts due the estate, rather than to assign them to others.’

At the session of the General Assembly in 1848, a statute, now a part of § 4944, was enacted. It gave courts of probate authority, before the final settlement of an estate, to order the sale of such of the credits and choses in action belonging to it ‘as they find it for the interest of said estate to have sold,’ in such manner and after such notice as the court deemed reasonable. Public Acts 1848, Chap. 40. In the revision of the probate law in 1885, the statute took its present form by the addition of the words, ‘and may at any time order the sale of personal estate.’ Public Acts 1885, Chap. 110, § 164. One can conceive various purposes which § 4944 might serve. For example, a situation might arise where persons interested in the estate might believe that, in the performance of his duty, an executor or administrator should sell certain personal property despite his unwillingness to do so; and they might under this statute seek an order of the Probate Court compelling him to act. See Williams v. Taylor, 81 Conn. 90, 70 A. 643. So, an executor may be confronted with the question whether he should sell personal property specifically bequeathed in order to pay debts of the estate; see Hewitt v. Sanborn, 103 Conn. 352, 373, 130 A. 472; and under the statute he could apply for an order which would determine that question. The enactment of the act of 1848, following so closely the decision in Beecher v. Buckingham, supra, suggests the principal purpose of the statute to be that it would enable an executor or administrator, by securing an order of sale, to protect himself aganist the claim that he had acted improperly, a claim with which he might otherwise be confronted, after the property had been sold, when he presented his account for allowance. We have reached a like conclusion with reference to §...