Silverstein v. Silverstein, No. CV 04-0083699 S (CT 2/24/2005), CV 04-0083699 S
| Decision Date | 24 February 2005 |
| Docket Number | No. CV 04-0083699 S,CV 04-0083699 S |
| Court | Supreme Court of Connecticut |
| Parties | Morris Silverstein v. Estate of Esther S. Silverstein Opinion No. 87841. |
This is an appeal from orders of the Probate Court for the District of Andover. The Plaintiff, Morris Silverstein, claims that he is an heir at law and creditor of the estate of Esther S. Silverstein and that he is aggrieved by the orders of the Probate Court denying his application to have the decedent's Columbia, Connecticut property distributed to the heirs at law and approving the administrator's application to sell the property to Ralph C. Bowen III and Kara A. Bowen. The issues raised in the reasons of appeal are that: 1) there is no need to sell the land, there are no estate debts or expenses approved since the final accounting in 1994 and there should be no debts or administrative expenses since then since there has been nothing to administer; 2) the heirs are entitled to the use and enjoyment of their inherited lands and its distribution is long overdue; and 3) the heirs have a constitutional, legal, and equitable right to inherit the land.
Trial on this matter was held on November 5th and 9th, 2004. Richard B. Laschever, administrator of the estate, Morris Silverstein, and Steve Karlson, attorney for the Bowens, participated in the trial. Testimony was heard from Attorney Laschever, William Fleet, a real estate agent, Morris Silverstein, and Ralph Bowen. Dorothy Mitchell, one of the other heirs, advised the court in writing that she desired that the land be sold as soon as possible. Pre- and post-trial memoranda of law were also filed.
From the evidence presented the following facts are found. By application dated September 25, 2003, the Administrator sought approval to sell certain real property. The administrator requested that he be allowed to sell land consisting of approximately thirty-five acres owned by the decedent at her death in Columbia, Connecticut for $170,000 to Ralph C. Bowen, III and Kara A. Bowen. By order of the Probate Court dated January 15, 2004, the court approved the application of the administrator to sell the property by private sale to the Bowens for $170,000 in cash and by separate order, denied the Plaintiff's application for a distribution of the real property to the heirs of the estate. This appeal followed.
This estate has been opened since 1969. In 1994 the Probate Court approved the administrator's final accounting and ordered that the assets of the estate be distributed in accordance with the proposed distribution. The proposed distribution provided that the equity in the Columbia property be distributed by thirds to each of the heirs. At that time the Probate Court approved a final accounting which provided for payment of administrative fees in the amount of $18,300. That order was appealed to the Superior Court and by decision dated January 8, 1998 the amount was reduced to $17,925. The court noted that the award was as of July 31, 1994 and additional fees incurred subsequently, if any, were not part of the order. The court also found that the Plaintiff had received certain sums which should have been paid to the estate and, in view of these disclosures, referred the matter back to the Probate Court for the filing of a supplemental or amended final accounting by the administrator. The court did not address the order of distribution and no amendments to that decision were ordered. The Superior Court decision was upheld by the Appellate Court (54 Conn.App. 901 (1999)) and certification to appeal that decision was denied by the Supreme Court (251 Conn. 905 (1999)). The administrator claims that he incurred significant expenses defending these appeals. The administrator argues that the sale of the property is necessary to pay administrative fees incurred after 1994 and a shortfall of payment of the fees approved in 1994. At the time of the Probate Court decision on the application to sell the real estate, no accounting had been filed since the 1994 accounting and no fees or expenses of administration had been approved since the Superior Court decision in 1994. The assets of the estate include only the land in Columbia and a bank account. The administrator testified that there is only about $1,741 in cash in the estate. It is unclear why the amount the administrator claims is in the bank account now is the same amount reflected in the 1994 accounting. It may be that the funds are still in an account bearing no interest as was noted in the Superior Court's 1998 decision. It is also unclear why this estate has continued to remain open and no further accountings have been filed since 1999 and the order of distribution entered in 1994 has not been complied with. Chase Nat. Bank v. Guthrie, 139 Conn. 178, 186 (1952).
As to the property which is the subject of the application, the administrator first tried to sell it in 1998 and had a buyer for about $75,000 but for some reason that sale was not completed. The Plaintiff describes the land in his brief as a "35+/- acres parcel of vacant, non-productive, unimproved woodland on a dirt road bordering on a swamp in Columbia, Connecticut." The administrator referred to a market analysis by a real estate agent, Mr. Fleet, which put the value of the property at plus or minus $4,000 an acre. In May 2003 Fleet offered the land for sale at a price of $250,000 but later determined that the properly was unsuitable for development and reduced the price. The property contains wetlands that cannot be built on. Fleet believes that the offer by the Bowens to purchase the property at $170,000 is very fair. There have been no other offers to buy the property.
The principles regarding the court's jurisdiction and discretion in an appeal from a decision of a Probate Court are well established. Kerin v. Stangle, 209 Conn. 260, 263-64 (1988).
"An appeal from probate is not so much an `appeal' as a trial de novo with the Superior Court sitting as a Probate Court and restricted by a Probate Court's jurisdictional limitations. Kerin v. Stangle, 209 Conn. 260, 264, 550 A.2d 1069 (1988); Baskin's Appeal from Probate, 194 Conn. 635, 641, 484 A.2d 934 (1984); Prince v. Sheffield, 158 Conn. 286, 298, 259 A.2d 621 (1969); see D'Agostino v. Amarante, 172 Conn. 529, 530, 375 A.2d 1013 (1972). Although the Superior Court may not consider events transpiring after the Probate Court hearing; Satti v. Rago, 186 Conn. 360, 369, 441 A.2d 615 (1982); it may receive evidence that could have been offered in the Probate Court, whether or not it actually was offered. See Baskin's Appeal from Probate, supra; Stevens' Appeal, 157 Conn. 576, 581, 255 A.2d 632 (1969):" Gardner v. Balboni, 218 Conn. 220, 225 (1991).
However, (Footnotes omitted). Andrews v. Garb, 237 Conn. 12, 15-16 (1996). Here the court has not been presented with any record from the Probate Court nor have the parties cited to any. Thus the court's review is de novo.
General Statutes §45a-164(a) provides that: "Upon the written application of the conservator of the estate of any person, guardian of the estate of any minor, temporary administrator, administrator or trustee...
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