Reiley v. Healey

• Decision Date: 08 April 1938
• Citation: 124 Conn. 216,198 A. 570
• Court: Connecticut Supreme Court
• Parties: REILEY et al. v. HEALEY.

198 A. 570

124 Conn. 216

REILEY et al. v. HEALEY.

Supreme Court of Errors of Connecticut.

April 8, 1938

Appeal from Superior Court, New Haven County; Kenneth Wynne, Judge.

Proceeding for allowance of the final account of Bessie A. Reiley, as administratrix of the estate of Edward B. Reiley, deceased opposed by Patrick Healey, administrator de bonis non of such estate. From a judgment of the superior court, affirming a decree of the probate court disallowing the account and dismissing an appeal therefrom, the administratrix and the surety on her bond appeal.

Error judgment set aside, and new trial ordered.

John H. Cassidy and Walter W. Smyth, both of Waterbury, for appellant American Surety Co. of New York.

John F. McLinden and Clayton L. Klein, both of Waterbury, for appellant Bessie A. Reiley.

Nathaniel R. Bronson, of Waterbury, for appellee.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

MALTBIE, Chief Justice.

The proceeding is an appeal from a probate decree disallowing a final account filed by Bessie A. Reiley who had been administratrix upon the estate of her deceased husband, Edward B. Reiley, but had been removed. In the superior court, the American Surety Company, surety upon her bond as administratrix, filed an account for her, and requested the court, after hearing upon it, to accept and allow it. The court acted upon that account, and, after making certain corrections in it, directed its allowance as a final administratrix' account. An appeal was taken to this court, and we found error in the action of the trial court as to certain items, set its judgment aside, and ordered a new trial. Reiley v. Healey, 122 Conn. 64, 187 A. 661. The matter was again heard by the superior court. It then dismissed the appeal from probate, and an appeal to this court has been taken by the administratrix and the surety company.

One of the conclusions of the superior court, which, if correct, would end the matter before us and before it, is that the only decree from which an appeal would lie was one disallowing an account filed in June, 1934, and that from that decree no appeal was taken. Irregularities in procedure in the court of probate, the inept way in which the matter was presented in the superior court and is presented to us, and the seeking for advantages which seems to have characterized the course of counsel makes it difficult to review this conclusion.

We have not before us the file of the probate proceedings, nor has the trial court made any findings as to the course of procedure in that court. There is, however, printed in the record an account sworn to by the administratrix on June 27, 1934, which is apparently one alleged in the reasons of appeal to the superior court to have been filed in the court of probate on June 30, 1934; and there appears also another account sworn to by her on August 16, 1934. To this is attached a decree by the judge of probate, dated August 16, 1934, reciting that a sworn return of a notice of a hearing had been given in accordance with an order made on June 30, 1934, accepting that return and disallowing the account. This was followed by a motion for an appeal and order by the court of probate thereon, both of which referred to the decree appealed from as one disallowing the final account of Mrs. Reiley as administratrix, without in any way identifying the particular account referred to. In the reasons of appeal to the superior court filed by the surety company, it is stated that the hearing of the first account filed by the administratrix was continued, to allow the administratrix to prepare a corrected account, and that she did file a later account, apparently that sworn by her on August 16th, but that the court of probate refused to hear the matter further and disallowed the first account. These statements are not denied; they accord with the decree made by the court of probate reciting an order of notice made before the second account was filed; and they afford a reasonable explanation of the situation. At any rate, the court of probate made a decree disallowing the final account filed by the administratrix; when the case came to the superior court, as before stated, another account was filed therein by the surety company; it asked the superior court, after hearing, to accept and allow it; and the superior court proceeded to correct it and allow a final administratrix' account upon that basis. The reasons of appeal are in accord with the trial court's conclusion that the only decree from which an appeal could be taken was that disallowing the account filed in June; despite the apparent inconsistency in annexing the decree disallowing the account to the second one filed, the proceedings, as far as the record before us shows, were treated as all based on the first account; and the probate appeal is broad enough to apply to the decree as one disallowing that account. The trial court, as far as the record before us shows, was in error in concluding that no appeal was taken from the decree disallowing the account filed in June.

The other conclusions of the trial court were that any attempt by it...