Silverstein's Appeal from Probate, In re, 5096

• Decision Date: 15 December 1987
• Docket Number: No. 5096,5096
• Citation: 13 Conn.App. 45,534 A.2d 1223
• Court: Connecticut Court of Appeals
• Parties: In re Morris SILVERSTEIN'S APPEAL FROM PROBATE.

Page 1223

534 A.2d 1223

13 Conn.App. 45

In re Morris SILVERSTEIN'S APPEAL FROM PROBATE.

No. 5096.

Appellate Court of Connecticut.

Argued Sept. 29, 1987.

Decided Dec. 15, 1987.

Morris Silverstein, pro se.

Constance L. Epstein, Hartford, for appellee (defendant Dorothy Silverstein Mitchell).

Before DUPONT, C.J., and BIELUCH and NORCOTT, JJ.

BIELUCH, Judge.

The plaintiff has appealed to this court from the "Certificate of Descent of real estate and other assets of the Estate [of Esther Sarah S. Silverstein]" issued by the Superior Court following a judgment by stipulation in his appeal from an order and decree of the Probate Court for the district of Andover. By amendment, the appeal was extended to cover rulings of the trial court made subsequent to the filing of this appeal. We find error.

The decedent, Esther Sarah S. Silverstein, died intestate on February 28, 1969, leaving four children as her heirs: Morris Silverstein, Dorothy S. Mitchell, Belle Silverstein and Samuel Silverstein. On March 8, 1969, the plaintiff, Morris Silverstein, was appointed administrator of his mother's estate. On August 26, 1982, the plaintiff made application to the Probate Court (1) for approval of his administration account, (2) for ascertainment of heirs and distributees, and (3) for an order of distribution. After a hearing, at which objections to the account were made by the plaintiff's sister, Dorothy S. Mitchell, the Probate Court on January 4, 1983, accepted the final account of the plaintiff, but disallowed certain claims, expenses and fees paid by him and ordered their reimbursement to the estate.

The plaintiff appealed to the Superior Court from the probate decree and orders. In his reasons of appeal from the probate decree and orders, the plaintiff alleged aggrievement in the disallowance of certain claims, expenses and fees and in the order for their reimbursement to the estate. A companion appeal was taken by Dorothy S. Mitchell. The Probate Court ordered that notice of these appeals be given to the plaintiff and Mitchell only. The Superior Court at no time made any further order of notice to the two remaining heirs. Mitchell appeared by counsel in the plaintiff's appeal. The plaintiff appeared by counsel and pro se in the Mitchell appeal. Without notice, however, the two remaining heirs, Belle Silverstein and Samuel Silverstein, appeared pro se in the Mitchell appeal only. They did not participate in the trial of either appeal.

On August 7, 1985, the trial court heard both probate appeals jointly. Only the respective plaintiffs and their counsel were present at the hearing. In the course of the proceedings, a stipulation for judgment was agreed to by these two heirs. The record reveals an extended discussion between the court, counsel and the plaintiff, after which the court approved the various terms proposed by the parties.

The stipulation provided that the trial court approve the administration account as filed in the Probate Court and order the immediate distribution of the real property of the estate to the four heirs in equal shares, after which a partition action would be filed if the heirs could not arrange a mutual buyout between them at an agreed appraisal. In addition, the plaintiff was to file a supplemental account with the Probate Court within ninety days.

Additionally, the personal property was to be divided equally between the heirs, but in case of any disagreement, the Probate Court would be asked to appoint distributors. In a private capacity, the plaintiff was to pay Mitchell $5000 and operate a cider mill located on the real estate until it was partitioned or sold. After discussion of these various terms between the court, counsel and the plaintiff, the oral stipulation was approved by the court.

At one point in the court's consideration of the proposed judgment, the plaintiff suggested a continuance to consult with the two absent heirs "and find out what their positions are in this." To this, the court responded that since they had pro se appearances in the Mitchell appeal, "[t]he court will enter judgment without them being a party to the stipulation." After objection to a continuance by Mitchell's counsel, the court further concluded that "[t]hey are not [necessary parties] in the opinion of the court, and while the court will accept the stipulation in both of these cases entered into by the parties, judgment may enter in each case in accordance with the stipulation as recited by [counsel for Mitchell] and concurred in by [counsel for the plaintiff] and by Mr. Silverstein and by Mrs. Mitchell. [Counsel for Mitchell] will prepare the judgment file."

A single judgment file was signed by the court for both actions. In this judgment file, the court found that the heirs of the deceased were listed in the application for administration, and "ORDERED AND DECREED that: Judgment enters in accordance with the stipulation of the parties in accordance with the transcript attached hereto. The rest, residue and remainder of said estate be distributed, transferred and paid over to and among the distributees in accordance with the findings of the Court as indicated above according to the statutes of the State of Connecticut covering intestate estates and MAKE DUE RETURN OF COMPLIANCE with this ORDER." The relevant sixteen page transcript segment was attached to the judgment file.

The plaintiff moved to open, set aside or modify the judgment. This motion was denied by the court, Kelly, J., on December 30, 1985. Mitchell, on January 10, 1986, moved "that the court hear evidence and clarify the stipulation of the parties and enter judgment accordingly." On January 13, 1986, the plaintiff moved for "Judgment in Accordance with Stipulation." In that motion, he requested that the trial judge, Barry, J., sign an attached judgment file which expressed, in seriatim, the terms of the stipulation for judgment as he understood them from the transcript. The latter two motions which sought a clarification of the judgment were denied by the court, Kelly, J., on January 21, 1986, without referral to the trial court which had rendered the judgment.

Thereafter, on April 11, 1986, the original trial judge issued and signed two certificates of descent for land owned by the decedent and located in Bolton and Columbia. Although signed by a judge of the Superior Court, these certificates of descent were on forms of, and purported to be issued by, the Probate Court for the district of Andover. Each certificate provides the following: "THIS CERTIFIES that as appears from the records of this Court said deceased died on [February 28, 1969] and [her] estate has been duly settled in this Court and there is distributed, set out or divided or descends: TO Belle Silverstein, Samuel Silverstein, Dorothy Silverstein Mitchell and Morris Silverstein who take by inheritance all such right, title and interest said deceased had at the time of her death in and to a certain piece or parcel of land [described]." ¹ The plaintiff thereafter took an appeal pro se to this court from the "Certificate of Descent of real estate and other assets of the Estate," issued in relation to his action only.

On a motion for contempt filed by Mitchell, the trial court, Kelly, J., on September 29, 1986, although it did not hold the plaintiff in contempt, ordered that he file a supplemental accounting for the period from July 1, 1982, to August 1, 1986, within thirty days. On November 14, 1986, the plaintiff amended his appeal to this court to include the trial court's subsequent ruling.

The plaintiff took no appeal from the judgment of August 7, 1985, rendered on the parties' stipulation. Although he moved to open, set aside or modify the judgment, he did not appeal from the denial of his motion which occurred on December 30, 1985. Nor did he appeal from the double denial on January 21, 1986 of Mitchell's motion for clarification of judgment and his motion for judgment in accordance with his understanding of the oral stipulation. Only when the original trial court issued its probate certificate of descent on April 11, 1986, purporting to effectuate a portion of the stipulated judgment did he appeal to this court, but he then restricted the appeal to his case only. No appeal was taken by him or his sister from any action in her companion suit. Such a factual situation on appeal is without precedent.

At no time did the defendant Mitchell seek to dismiss this appeal for lack of jurisdiction or for untimely appeal. Practice Book § 4056. Such an attack is made by her for the first time in the preliminary argument of her brief. Without supporting argument or citation of authority, she now asserts that the plaintiff is foreclosed from appealing the stipulated judgment (1) because the issuance of the certificates of descent "was an express and essential portion of the stipulation into which Mr. Silverstein had entered," and (2) because his claim that the trial court lacked subject matter jurisdiction to enter the stipulated judgment was never raised prior to the appeal.

In substance, the plaintiff has appealed from the stipulated judgment rendered on August 7, 1985, although his jurisdictional statement states that the appeal is from the "Certificate of Descent of real estate and other assets of the Estate." Until the preliminary argument in her appeal brief, the defendant Mitchell's apparent understanding was that the plaintiff's appeal was properly and timely taken. The defects in the plaintiff's jurisdictional statement and his late appeal now suggested by the defendant Mitchell are waivable and have been waived by her. Windham Community Memorial Hospital v. Willimantic, 166 Conn. 113, 115, 348 A.2d 651 (1974); LaReau v. Reincke, 158 Conn. 486, 493-94, 264 A.2d 576 (1969). These defects do not void the plaintiff's appeal. We will, therefore, proceed to determine the appeal. See Giordano Construction Co. v. Ross, 182 Conn. 577, 578, 438...