136 A. 108 | Conn. | 1927
On December 15th, 1893, Margaret Kennaugh died intestate at Waterbury, leaving certain real estate there located. She left as her heirs at law seven children, of whom one, John, was appointed and qualified as administrator. He entered upon the administration of the estate, by authority of the Court of Probate borrowed a large sum of money of a savings-bank, all the heirs joining in the mortgage, and in 1908 and 1909 erected upon the property a four-story building containing tenements and stores. In 1912 one of the sons of the intestate, William, died, leaving *559 no children but a widow, the present plaintiff, who is now executrix upon his estate.
In December, 1912, John, as administrator upon his mother's estate, applied to the Court of Probate for permission to sell the real estate, giving public notice of the application by one publication in a Waterbury newspaper, as directed by the court, but no other notice to the plaintiff, and on December 22d received authority to sell the property at public or private sale, first giving notice by publication in a Waterbury newspaper and by posting upon the public signpost. On December 26th John executed an administrator's deed of the property to one Lannen, and immediately thereafter Lannen executed a quitclaim deed of the property to John, his two living brothers, and two of his sisters. Only John and one of his sisters knew of these deeds until a considerable time thereafter. The trial court finds that the administrator's deed was made without consideration and that the property was at that time worth $2,500 above the incumbrances upon it. The plaintiff brings this action seeking, among other claims for relief, to have the deeds from John as administrator to Lannen and from Lannen to John and his brothers and sisters set aside and to have the title to the property settled in John as such administrator, and this relief the court granted.
The finding of the trial court that the administrator's deed was without consideration is attacked upon the appeal. John himself testified that he could not remember that any money was paid; the statement of the sister Julia that $600 was paid was entirely vitiated by her later retraction and her confessed inability to remember any details of the transaction; no one else testified to any payment being made; it does not appear that John ever accounted to the Court of Probate for any sums received on the sale; and all that does *560 appear is the recital in the administrator's deed to Lannen that it was given upon a consideration of $600. It is difficult to see upon the evidence how the court could have found otherwise that it did. It is true that the complaint alleged that $600 was paid by the grantees in Lannen's deed; but the defendant pleaded lack of knowledge as to the facts stated in the paragraph in which this allegation is included; and certainly in such a situation the plaintiff is not bound to it if the evidence shows that it was not true.
The appellant seeks to have the finding corrected by adding the additional fact that the plaintiff "had notice," which we take to mean actual notice, of the sale of the real estate by John as administrator, but the record is barren of evidence indicating such notice on her part, and she herself testified that she knew nothing of it until about the time this action was brought, in December, 1924. The court was justified upon the evidence in refusing to find that the payment of the funeral expenses of the plaintiff's husband was made from the funds of the estate, rather than by the brothers and sisters individually, and in refusing to find that the plaintiff, in consideration of this payment and the transfer to her of the proceeds of a certain insurance policy upon the life of her husband, orally agreed to accept the same in full settlement of her share in the estate of Margaret Kennaugh. The other corrections sought are immaterial.
It is evident that Lannen was a mere conduit in the transaction by which the title to the real estate passed from the estate to John, his brothers and sisters, and that they stood in the same position as though the conveyance had been made directly to them. Unless the method provided in § 5020 of the General Statutes is followed, a transaction by which an executor or administrator becomes a purchaser of property of the *561
estate is voidable at the instance of heirs or distributees, provided they take proper steps to that end; still less can he justify a transfer of the property to himself where no consideration is given the estate in return for it. Filley v. Phelps,
The plaintiff was entitled to judgment, provided the court had jurisdiction to hear and determine the case. The defendants claim that the plaintiff should have sought her relief in the Court of Probate. Such relief as might there be had by requiring an accounting by the administrator would fall far short of the redress to which the plaintiff is entitled, a return to the statusquo ante. The defendants other than John as administrator, are not now claiming their interests in the property by virtue of the laws of inheritance, but as grantees of a title derived through the sale of the lands by the administrator; they stand in the position of purchasers from him. The record fails to show that the administrator ever made any return of the sale, and we must therefore assume that he did not; but, by our law, the failure to make a return does not invalidate a title acquired upon an administrator's sale.Dunn's Appeal,
The record discloses that neither Lannen nor one of the grantees in his deed, Patrick Kennaugh, are parties to the action. Under such circumstances so much of the judgment of the court as sets aside the deeds from the administrator to Lannen and from him to the heirs of Margaret Kennaugh cannot be sustained. As Lannen is found to have conveyed all the interest he acquired by his deed to the grantees named in it, and as it is alleged in the complaint and admitted by the appellants, that Patrick Kennaugh subsequent to the deed from Lannen, conveyed all his interest in the premises to the defendant Julia Kennaugh, the court could properly have required her and the other grantees in Lannen's deed, aside from Patrick, to restore the property to the estate by appropriate conveyances.Rose v. Persse Brooks Paper Works,
There is error, the judgment is set aside and the cause remanded with direction to enter judgment for the plaintiff in accordance with this opinion.
In this opinion the other judges concurred.