Silverstone v. Lillie

• Decision Date: 16 March 1954
• Court: Connecticut Supreme Court
• Parties: SILVERSTONE v. LILLIE et al. In re JOYCE'S ESTATE. In re SMITH'S ESTATE et al. Supreme Court of Errors of Connecticut

Page 915

103 A.2d 915

141 Conn. 104

SILVERSTONE v. LILLIE et al.

In re JOYCE'S ESTATE.

In re SMITH'S ESTATE et al.

Supreme Court of Errors of Connecticut.

March 16, 1954.

Harry Silverstone, Hartford, with whom, on the brief, was Jonathan Silverstone, Hartford, for appellant (plaintiff).

J. Harold Williams, Hartford, for appellees (defendants Lillie et al., executors).

George Cutler, Hartford, for Phoenix State Bank & Trust Co., administrator c.t.a. of the Estate of Sally Genung.

Before INGLIS, C. J., BALDWIN, O'SULLIVAN and WYNNE, JJ., and DALY, Superior Court Justice.

O'SULLIVAN, Associate Justice.

This matter came to the Superior Court as an appeal from an order of the Probate Court for the district of Farmington reopening the commission of commissioners on the insolvent estate of Sally Genung, deceased. The object of the order was to enable the commissioners to readjudicate two claims previously heard and allowed by them. The Superior Court dismissed the appeal, and from its judgment the plaintiff has appealed to this court.

The following facts are unchallenged: On November 5, 1929, the Probate Court for the district of Farmington admitted to probate the will of Sally Genung, who had died on the preceeding September 20. The court appointed an administrator c.t.a. on the estate and limited six months for the presentation of claims. Within that time four claims, in the amounts of $3,000, $75, $410 and $1,035, were presented on behalf of Winchell Smith. Smith died in 1933, and the defendants Charles A. Lillie and the Phoenix State Bank and Trust Company qualified, and are now acting, as coexecutors of his will. On May 20, 1947, upon the administrator's representation that the estate of Sally Genung was insolvent, the Probate Court appointed commissioners to receive and pass upon all missioners to receive and pass upon all administrator, who had neither allowed nor disallowed any of the claims submitted to him, turned all of them over to the commissioners. They held hearings and, on May 27, 1948, filed a report wherein the Smith claims of $3,000, $75 and $410 were allowed but the claim of $1,035 was disallowed. The Probate Court accepted the report.

On June 18, 1948, the plaintiff, administrator of the estate of Mary C. Joyce, a legatee under the will of Sally Genung, took appeals from the doings of the commissioners in allowing the claims of $3,000 and $75. These appeals were returned to the Superior Court on the first Tuesday of September, 1948. In each appeal the coexecutors of the Smith will entered their appearance and filed a statement of claim. There were no further proceedings in the Superior Court until May 4, 1951, when both appeals, on the annual call, were stricken from the docket; neither of the parties made any subsequent effort to restore them.

Some time later, the administrator on the Genung estate filed in the Probate Court an administration account in which provision was made for the payment of the Smith claims of $3,000 and $75. At the hearing on the account, on December 18, 1951, the plaintiff objected to its allowance so far as it provided for payment of these claims. The Smith coexecutors then sought and obtained a continuance of the hearing and, on April 3, 1952, filed a motion to reopen the commission of the commissioners for the purpose of obtaining a readjudication of the challenged claims of $3,000 and $75. On July 2, 1952, the Probate Court granted the motion and entered its order reopening the commission for the purpose stated in the motion. The sole question presented to us on this appeal is whether the Superior Court was correct in holding that the Probate Court had the power to enter such an order.

An appeal from the doings of commissioners is not in any sense an appeal from probate. Tolles' Appeal, 54 Conn. 521, 524, 9 A. 402. An appeal of the latter type does not vacate or suspend the decree appealed from. The decree remains wholly unaffected until modified or set aside by the Superior Court. In re Avery's Appeal, 117 Conn. 201, 205, 167 A. 544, 88 A.L.R. 1154; White v. Strong, 75 Conn. 308, 312, 53 A. 654; Dickinson's Appeal, 54 Conn. 224, 231, 6 A. 422; 1 Locke & Kohn, Conn. Probate Practice, p. 420. Consequently the erasure of the appeal, whether from a trial on the merits or for failure to comply with the rules of...