20 Conn. App. 58 | Conn. App. Ct. | 1989
This is an appeal from the decision of the Superior Court affirming, after a trial de novo, the order of the Probate Court to sell real estate.
The plaintiffs claim that the Superior Court erred (1) in failing to find the appeal to be premature because the Probate Court had not issued a decree of sale, (2) in allowing into evidence a previously unsigned, unenforceable contract for the sale of real estate, and (3) in failing to find that an oral contract to convey real estate violated the statute of frauds. We find no error.
Before the claims of error are considered, a threshold question of the plaintiffs’ aggrievement and standing to appeal must be determined because it goes to the jurisdiction of the Superior Court to hear the appeal. Lenge v. Goldfarb, 169 Conn. 218, 220, 363 A.2d 110 (1975); Urrata v. Izzillo, 1 Conn. App. 17, 19, 467 A.2d 943 (1983); see also State v. Pierson, 208 Conn. 683, 687, 546 A.2d 268 (1988), cert. denied, 489 U.S. 1016, 109 S. Ct. 1131, 103 L. Ed. 2d 193 (1989). The general rule is that a disappointed bidder lacks standing to commence a legal action. Ardmare Construction Co. v. Freedman, 191 Conn. 497, 501-502, 467 A.2d
I
In their first claim of error, the plaintiffs argue that the Superior Court should have dismissed the appeal on the ground that it was premature “because the intervening defendant [Colonial] had never filed a proper bond.” Although this statement does not characterize the issue directly as one of subject matter jurisdiction, the plaintiffs’ assertion that “the appeal was premature or moot and that this court should return this case back [sic] to the Probate Court to insure compliance with all statutory requirements” amounts, in effect, to an attack on the Superior Court’s jurisdiction.
We perceive two problems with this argument. To begin with, we are confronted with the highly unusual argument from the plaintiffs that the Superior Court should have dismissed their appeal. We fail to comprehend how this position could benefit them. At the time they appealed to the Superior Court, there was a Probate Court order of sale, even if arguably a deficient one, in effect. This order remains in full force and effect
Thus, if we agree that the Superior Court should have dismissed the appeal from probate, the proceedings in the Probate Court would go forward, resulting in the sale to Colonial that the plaintiffs oppose. Kerin v. Stangle, supra. Any further appeal attacking the order of sale would be barred by the statutory thirty day appeal period. General Statutes § 45-289.
The second problem with the plaintiffs’ argument is that there is no requirement that a purchaser of real estate from a decedent’s estate post any type of bond.
The only reference to a bond being filed by the purchaser is found in the decree allowing the appeal from probate.
The order of sale fixed the fiduciary’s bond on the sale at $160,000 and recited that it had been filed and approved. The Superior Court found that the bond had not yet been filed. This error, however, is not relevant to this appeal. If a bond was not filed before the conveyance, it would void the sale; State ex rel. Moriarty v. Donahue, 82 Conn. 308, 313, 73 A. 763 (1909); not the order of sale. There is no error on the plaintiffs’ first claim.
II
In their second claim, the plaintiffs argue that the Superior Court erred when it allowed Colonial’s previously unsigned contract into evidence at the trial de novo. This claim is founded on the singular nature of
It is firmly established that in probate appeals, a Superior Court may admit any evidence that was received by the Probate Court or could have been received by it. Kerin v. Stangle, supra; Baskin’s Appeal from Probate, 194 Conn. 635, 641, 484 A.2d 934 (1984). The converse of this rule is that the Superior Court may not receive evidence that the Probate Court could not have received because it came into existence subsequent to the Probate Court hearing. Satti v. Rago, supra, 369.
The plaintiffs contend that this rule of evidence precluded the Superior Court from admitting Colonial’s
The Probate Court had two contracts for sale presented to it: one from the plaintiffs for $155,000 and an unsigned contract from Colonial for $185,000. Colonial represented that it would sign and deliver its contract to the attorney for the decedent’s estate before 5 p.m. the following day. The Probate Court examined Colonial’s unsigned contract and, because of the $30,000 difference in price, found it to be in the best interest of the estate to approve it.
When the Probate Court approved Colonial’s contract, it, in effect, acceded to Colonial’s request that it be given until 5 p.m. the next day to execute and deliver the contract to the estate’s attorney. This may be viewed either as a continuance of the hearing until that time or the entry of an order of sale conditioned upon the submission of a signed contract to the estate’s attorney. Under either theory, the executed contract was not documentary evidence that came into existence subsequent to the Probate Court hearing. Thus, the Superior Court did not err in admitting Colonial’s signed contract into evidence.
Ill
The plaintiffs next argue that the Superior Court’s approval of the previously unsigned contract for the sale of real estate violated the statute of frauds. General Statutes § 52-550. This claim assumes that we would find the submission of the previously unsigned Colonial contract to be in error and that the Superior Court was limited to considering the contract in the unsigned form in which it was initially exhibited to the Probate Court. This assumption evaporated in part II of this decision, supra, wherein we held that the Superior Court properly admitted that contract into evidence.
IV
In their next claim, the plaintiffs argue that the Superior Court erred in not finding that the notice of the hearing on the application to sell real estate was defective. The pertinent part of General Statutes § 45-241 states that “the court of probate in ordering a sale . . . shall direct whether the sale shall be public or private.” The plaintiffs argue that if the hearing had resulted in approval of a sale to them, it would have been a private sale. They contend that it became a public sale, however, when a buyer, previously a stranger to the proceedings, appeared at the hearing and offered more money for the property. That is not correct.
As used in the statute, public and private are words of art having meanings slightly different than their common usage in the language. A public sale is a sale made at public auction and all other sales are private, including, for example, a sale by the filing of sealed bids to be opened by the Probate Court at a specified time. Off0redi v. Huhla, 135 Conn. 20, 23, 60 A.2d 779 (1948); 2 G. Wilhelm, Connecticut Estates Practice (1974) § 160.
V
In the present case, the fact that a hearing on the application to sell the real estate resulted in a sale to a party other than the one initially expected to be the
In their final claim, the plaintiffs argue that there was insufficient evidence to warrant an order of sale to Colonial. It is the duty of the court to determine what would be in the best interest of the estate. General Statutes § 45-238 (a). That determination rests within the discretion of the Probate Court and, on appeal, with the Superior Court. Kerin v. Stangle, supra, 264. We are satisfied that there was ample evidence to support a finding that a sale to Colonial for $30,000 more than the plaintiffs were offering was in the best interest of the estate. Thus, the Superior Court’s decision was a legal and reasonable exercise of its discretion.
There is no error.
In this opinion the other judges concurred.
At oral argument, counsel for Colonial advised this court that the parties conceded that the bond mentioned in the Probate Court order allowing the appeal should have referred to the fiduciary and not to the intervening defendant. That concession is not binding upon this court, however; In re Grand Jury Report Concerning the Torrington Police Department, 197 Conn. 698, 716, 501 A.2d 377 (1985); see State v. Heinz, 193 Conn. 612, 616, 480 A.2d 452 (1984); and since this claim of error implicates the jurisdiction of the Superior Court, we have elected to consider it on its merits.
The appearance of the decree allowing the appeal, on legal stationery of the plaintiffs’ counsel, tends to indicate that, in accordance with a common custom, the decree was prepared by them and submitted to the Probate Court for signature. This would be consistent with the reference to Colonial in papers initiated by them, whereas the correct party was referred to in the order of sale, which was initiated by the court.