7 Conn. App. 522 | Conn. App. Ct. | 1986
The named defendant, Rona Finizie, her two brothers, the defendants Lionel T. and Edmond J. Finizie, and their decedent mother, whose estate is being administered by the plaintiff,
The court, on May 2,1985, rendered judgment ordering partition by sale. The trial court, in that judgment, declared the ownership interests to be as alleged in the plaintiff’s complaint and stated flatly that “a sale will better promote the interest of the parties.”
Although the complaint does not so state, it is apparent that the plaintiff sought a partition of the real estate under General Statutes § 52-495
The precise question of whether an administrator, alleging nothing more than tenancy in common, is a
“Where, however, an executor seeks to institute and maintain an action to quiet title to real property without alleging and proving that the property is needed to settle claims against the estate, we do not think that the statutory requirement of interest in the property is sufficiently met. . . .
Absent a showing in this case by the plaintiff that he brought himself as administrator within some recognized or recognizable principle giving him a sufficient interest in the real estate to request its partition, he lacked standing to bring this action. “Standing is a matter of subject matter jurisdiction which cannot be conferred by the parties.” Housing Authority v. Local 1161, 1 Conn. App. 154, 157, 468 A.2d 1251, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984). The Superior Court, therefore, lacked jurisdiction over the plaintiff’s complaint.
We note, for clarity, that the plaintiff could have, but did not, bring a complaint for partition or sale by direct petition to the Probate Court under the provisions of General Statutes § 45-257a. Under that statute, both partition and sale are authorized in language substantially similar to that of General Statutes §§ 52-495 and
There is error, the judgment is set aside and the case is remanded with direction to dismiss the complaint for lack of subject matter jurisdiction.
In this opinion the other judges concurred.
The complaint was brought only in the name of the estate of Ann Finizie. It did not name the fiduciary or allege proper appointment of one. The pleadings and the judgment, however, reflect the fact that the fiduciary is John M. Claydon, Jr.
The court did not file a memorandum of decision elaborating on this barebones statement in the judgment, nor was articulation sought by the defendants.
The issue we consider was not raised below nor briefed nor argued by the parties in this court. We therefore decide only such issues as are necessarily involved in the conclusion which we have reached.
General Statutes § 52-495 provides in pertinent part: “Courts having jurisdiction of actions for equitable relief may, upon the complaint of any person interested, order partition of any real property held in tenancy in common . . . .”
General Statutes § 52-500 provides in pertinent part: “(a) Any court of equitable jurisdiction may, upon the complaint of any person interested, order the sale of any property, real or personal, owned by two or more persons, when, in the opinion of the court, a sale will better promote the interests of the owners.”
We do not reach the question of whether this statute should be construed as vesting exclusive control of such proceedings in the Probate Court or as merely creating jurisdiction concurrent with that of the Superior Court. The preeminent authority on Connecticut probate practice, however, concludes as follows: “The partition, or sale in lieu of partition, of real estate owned in part by a deceased person may furnish another example of concurrent jurisdiction. At one time, it was considered that the Superior Court could order the sale of the real estate of a deceased person before the final settlement of his estate where a partition between the joint devisees was not feasible. This, however, was because the statute at that time did not empower the Probate Court to order the sale of real estate to facilitate distribution. Under the present statutes, which empower the Probate Court to authorize a sale whenever it shall find that to grant such authority would be for the best interests of the parties in interest and which prohibit a Superior Court partition of any property belonging wholly to an estate in settlement in the Probate Court before it is ready for distribution, a case could hardly arise where the Probate and Superior Courts would have concurrent jurisdiction with reference to the sale or partition of property wholly owned by an estate. However, in the case of property partially owned by an estate, it would seem that both the Probate Court, within specified limits, and the Superior Court could order partition or sale in lieu of partition.” (Footnotes omitted.) 1 Locke & Kohn, Connecticut Probate Practice § 75. For a discussion of exclusive and concurrent jurisdiction in the Probate Court and the Superior Court; see Hall v. Dichello Distributors, Inc., 6 Conn. App. 530, 534-36, 506 A.2d 1054 (1986).