Vaitekunene v. Budrys

• Decision Date: 07 June 1968
• Citation: 244 A.2d 408,156 Conn. 547
• Court: Connecticut Supreme Court
• Parties: Ona P. VAITEKUNENE v. Jonas BUDRYS et al.

Page 408

244 A.2d 408

156 Conn. 547

Ona P. VAITEKUNENE v. Jonas BUDRYS et al.

Supreme Court of Connecticut.

June 7, 1968.

Robert I. Berdon, New Haven, with whom, on the brief, was Joseph Glass, New Haven, for appellant (plaintiff).

Robert L. Hirtle, Jr., Asst. Atty. Gen., with whom were Bernard F. McGovern, Jr., Asst. Atty. Gen., and, on the brief, Robert K. Killian, Atty. Gen., and F. Michael Ahern, Asst. Atty. Gen., for appellee (defendant state treasurer); with him also, on the brief, were Leo C. Mazotas, Hartford, for appellee (named defendant), and Vincent P. Matasavage, Waterbury, for appellee (defendant Kripaitis, executor).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

KING, Chief Justice.

This is an appeal from an order of the Probate Court for the district of New Haven directing the disbursement of a legacy bequeathed under the will of Simon S. Cverka, deceased, to Ona Vaitekunene, a resident and domiciliary of Lithuania, hereinafter for convenience referred to as Ona. At a hearing on the executor's final account held on November 19, 1962, the account was apprvoed, and Ona's legacy, less a charge for legal services, was ordered paid to the treasurer of the state of Connecticut, to be held for her pursuant to the provisions of § 45-278 of the General Statutes. ¹ See Nikitiuk v. Pishtey, 153 Conn. 545, 219 A.2d 225, construing and applying that statute.

Thereafter, on July 10, 1964, the defendant Jonas Budrys, Consul General of Lithuania at New York, hereinafter referred to as the consul, petitioned the Probate Court for an order for payment to him of the funds held by the treasurer for the benefit of Ona so that he might forward to her, in accordance with her expressed desire, 'various goods and merchandise that would prove beneficial and useful to her' and alleging that he could now effectively send packages to her. The court, after a hearing, ordered payment of the bequest to the consul for forwarding to the legatee 'in the manner, plan and form as particularly requested and set forth in * * * (the consul's) application.'

Thereupon, an appeal from that order was filed in the Superior Court, purportedly on behalf of Ona, and in her name, by a Connecticut attorney, representing himself to be her attorney, and naming as appllees the consul, the treasurer, and the executor of Cverka's estate. Subsequent papers incident to the appeal from probate, and to the appeal to this court, were filed in Ona's name by other Connecticut attorneys.

Paragraph 1 of the reasons of appeal as finally amended alleged that Ona had executed a power of attorney authorizing a named New York law firm to represent her in connection with the estate and to receive and collect in her name all moneys due her from the estate. For convenience, we refer to that law firm as the appellant, although Ona herself is the named appellant.

Paragraph 2 of the reasons of appeal as finally amended denied the jurisdiction of the Probate Court to order the funds in the hands of the state treasurer to be distributed to the consul to be expended by him in the purchase of goods and merchandise to be sent to Ona for her use and benefit. More properly this was a denial of the power, rather than of the jurisdiction, of the court to make that particular order, since the general subject matter of Ona's entitlement to receive the legacy was clearly within the statutory jurisdiction of the court. 1 Locke & Kohn, Conn. Probate Practice §§ 39-41. For reasons which will hereinafter appear, we find it unnecessary further to consider this reason of appeal or the assignment of error based thereon.

Each of the three appellees filed an identical answer, in effect denying the two reasons of appeal and pleading as a special defense that, if distribution is made pursuant to the appellant's purported power of attorney, Ona will not have the benefit, control or use of the legacy owing to her, as required by § 45-278 of the General Statutes. The appellant, by way of reply, denied the special defense in each answer.

On those pleadings the parties went to trial in the Superior Court, and after a hearing, the court found the issues for the defendants, affirmed the order of the Probate Court and dismissed the appeal therefrom. See Nikitiuk v. Pishtey, 153 Conn. 545, 554, 219 A.2d 225. Thereupon the appeal to this court was taken.

There is no question that the money belongs to Ona. As far as paragraph 1 of the reasons of appeal is concerned, the dispute is between the consul and the appellant, each claiming to be authorized to represent her and to collect and receive on her behalf the money in the hands of the state treasurer owing to her.

The Superior Court found the issues for the defendants. Thus, paragraph 1 of the reasons of appeal, containing the vital allegations of authority of the appellant to act for Ona, was not proven. This determination left the appellant without any authority or standing to act or speak for Ona at all. The appellant stood as an unauthorized interloper in these proceedings, without authority to attack the decree of the Probate Court, to represent Ona in connection with the estate or to collect or receive her legacy in her name or on her behalf.

Although the appellant failed to seek or obtain a finding, it seems to be agreed that the power of attorney was not admitted into evidence and that upon its exclusion the appellant rested its case. ²

Of course if the court excluded the power of attorney, or excluded or admitted any other evidence, and such action was claimed to have been erroneous, it would be necessary, for a review by us of any such ruling or rulings, that there be a finding showing the ruling or rulings, the bases for them, and the claims of the parties in respect to them as made at the trial. Casalo v. Claro, 147 Conn. 625, 628, 165 A.2d 153. But the appellant did not seek or obtain a...