Pettee v. Hartford-Connecticut Trust Co.

• Decision Date: 28 January 1927
• Court: Connecticut Supreme Court
• Parties: PETTEE v. HARTFORD-CONNECTICUT TRUST CO. ET AL.

136 A. 111

105 Conn. 595

PETTEE v. HARTFORD-CONNECTICUT TRUST CO. ET AL.

Supreme Court of Errors of Connecticut.

January 28, 1927

Appeal from Superior Court, Hartford County; Earnest C. Simpson, L P. Waldo Marvin, and Isaac Wolfe, Judges.

In the Matter of the estates of Ione Sawyer and George O. Sawyer. From an order of the probate court filing and accepting the report of commissioners appointed to decide upon the claim of Harriet I. Nickerson which was presented to the Hartford-Connecticut Trust Company, executor, and disallowed an appeal was taken to the superior court, where a motion to dismiss was denied, a demurrer to the reasons of appeal was overruled, and upon issues joined the case was tried to the court. From judgment confirming the decree of the probate court, Virginia Pettee appeals. Error in form of judgment which is reversed with directions.

Motion to erase or to dismiss was proper remedy, where record showed remedy pursued by appellant did not exist.

Ufa E. Guthrie, of Hartford, for appellant.

Roger Wolcott Davis and Louis W. Schaefer, both of Hartford, for appellees.

Argued before WHEELER, C.J., and CURTIS, MALTBIE, HINMAN, and NICKERSON, JJ.

NICKERSON, J.

Ione Amelia Pingree Sawyer died testate about May 16, 1924, leaving a will, which was admitted to probate by the probate court for the district of Hartford. By her will she gave all the remainder of her estate to her husband, George O. Sawyer, absolutely. He died at Hartford in September, 1924, leaving a will which was admitted to probate by the probate court for the district of Hartford and the Hartford-Connecticut Trust Company has been and is the duly qualified and acting executor of both the estates of Ione Sawyer and George O. Sawyer. These estates, consisting of real and personal property, are still in process of settlement, and there has been no distribution.

In the will of George O. Sawyer, after the payment of certain legacies, all the rest of the estate is devised and bequeathed to the Connecticut Trust & Safe Deposit Company in trust to hold, manage, and invest with full power of sale, until the twenty-fifth anniversary of the birth of Charles Pettee, born May 12, 1908, when the trust shall terminate and the property shall be divided and distributed as follows:

" To my granddaughter Virginia Pettee or her children one-half thereof; to my grandson George O. S. Pettee, or his children one-fourth thereof; and to my grandson Charles A. Pettee, or his children one-fourth thereof."

" In case of the death of any of said grandchildren leaving no issue living at the termination of the trust the share which such deceased grandchild or his children would receive if living shall be distributed in equal shares, per stirpes, to such of said other grandchildren or their children as shall be living at the termination of the trust."

The will also provides that--

" No part of the income or principal of the trust fund shall be subject to anticipation, alienation or assignment by any beneficiary."

Virginia Pettee survived her grandfather, George O. Sawyer, and is the appellant herein.

On October 22, 1924, the appellee, Harriet I. Nickerson, presented to the executor of the estate of Ione Sawyer a claim for services rendered by her for the deceased in her lifetime. The claim was disallowed by the executor.

On May 11, 1925, the appellee, pursuant to the statute, filed in the probate court an application for the appointment of commissioners to receive and decide upon the claim. The probate court thereupon ordered that the application be heard and determined on the 28th day of May, 1925, and that notice of such application, and of the time and place set for a hearing thereon, be given by newspaper publication and by registered mail. The order respecting notice was duly complied with, and a return of such compliance was made which was found true and accepted by the court.

On May 28, 1925, the probate court, acting upon such application, appointed commissioners to hear and decide upon the claim and directed that they give notice of the time and place of their meeting to the executor of the estate of Ione Sawyer and to the claimant. The order was duly complied with. No notice was given the appellant. The notice given was that ordered by the probate court to be given by the commissioners to the claimant and to the executor who disallowed it.

The commissioners, having been duly sworn, met pursuant to the notice given, and having heard the claimant, Harriet I. Nickerson, and the Hartford-Connecticut Trust Company, executor, and their witnesses, allowed the claim in part and disallowed the balance, and on June 4, 1925, made their report to the probate court. The judge of probate indorsed thereon, " Filed and accepted June 6, 1925." From such indorsement, calling the same an " order and decree," the appellant on July 3, 1925, appealed to the superior court. Before her appeal was taken the appellant had knowledge of the appointment of commissioners, their action on the claim and report to the probate court.

The eleventh and twelfth reasons of appeal allege that the court erred in failing to correct the finding in accordance with the appellant's exceptions. No evidence is certified in connection with the exceptions. There is nothing upon which this court can determine whether the facts stated in the motion and exceptions are correct. The appellant made no request to the trial judge to certify the evidence and attached none to the exceptions. There is nothing upon which to base any correction of the finding. The appellant has wholly failed to comply with the statute and rules governing the correction of findings. Pr. Bk. 309, § 11; Gen. Stat. § § 5830, 5831.

The opinions of this court contain repeated assertions that a finding will not be corrected unless the appellant complies with the law relating thereto. Elkin v. McGeorge, 103 Conn. 487, 489, 130 A. 898; Gioia v. Annunziata, 102 Conn. 52, 127 A. 921; Dexter Yarn Co. v. Am. Fabrics Co., 102 Conn. 529, 129 A. 527; State v. Kelly, 100 Conn. 506, 507, 508, 124 A. 37.

" It ought not to be necessary in numerous cases for this court to call the attention of counsel to this rule with wearisome iteration, and to emphasize the fact that it will be strictly adhered to." West v. Lewis Oyster Co., 99 Conn. 62, 121 A. 464.

The remaining seven reasons of appeal may be considered together. They relate to the failure of the commissioners to give the appellant notice, either actual or by publication in a newspaper, of the time and place of the hearing upon the claim of the appellee Nickerson; to the action of the probate court in filing and accepting the commissioners' report; and to the claim that the trial court erred in failing to hold that the order of the probate court in filing and accepting the commissioners' return was null and void.

The claim of the appellee, presented to the Hartford-Connecticut Trust Company, executor of the estate of Ione Sawyer, was disallowed. The appellee then brought an application to the probate court for the appointment of commissioners under the provisions of section 4990 of the General Statutes as amended by chapter 124 of the Public Acts of 1921.

The statute, as amended, provides for the appointment of commissioners on solvent estates to receive and decide upon the claims so presented. It contemplates that the estate is being settled as a solvent estate; that a claim has been presented to the executor or administrator within the time limited for the presentation of claims and has been disallowed by such executor or administrator. Such prerequisites existing, the creditor may, within one month after such disallowance, or the expiration of the time limited for presenting claims, apply to the probate court for the appointment of commissioners to receive and decide upon such claim.

Upon the application of the appellee Harriet I. Nickerson, claiming to be a creditor, the court of probate, in the exercise of its discretion, appointed commissioners to receive and decide upon the claim so presented and disallowed. These commissioners had all the powers and duties concerning the appellee's claim appertaining to commissioners under the provisions of sections 4991 and 4992 of the General Statutes. Section 4991 relates to the notice to be given creditors where commissioners are appointed upon insolvent estates. It is there provided that public notice shall be given of the time and place of the meetings of the commissioners so appointed to receive and decide upon the claims of the creditors of the estate, and also that notice shall be sent to every known creditor. The claims must be exhibited to the commissioners so appointed to receive and decide upon them. Gen. Stat. § 4994. Section 4992 relates to the appointment of commissioners after the time for the presentation of claims has expired. Where all claims have been presented, the executor or administrator may represent the estate insolvent, and thereupon the court shall appoint commissioners to receive and decide upon the claims of creditors against the estate.

The statute contemplates that the claims against the estate have been presented. The commissioners are appointed to decide upon only those that have been so presented. The information as to what claims have been presented can be obtained from the executor or administrator. He delivers such claims to the commissioners. Notice is to be given to every person who has presented a claim against the estate " in such manner as the court of probate shall direct." In appointing commissioners upon a solvent estate, the court proceeds as in section 4991. Public notice is given to all persons in interest to appear, if they see cause, before the court at a time and place...