139 Conn. 738 | Conn. | 1953
This is an appeal to the Superior Court from the decree of a Probate Court ordering the distribution of assets of the estate of Benjamin Epstein pursuant to the eleventh paragraph of his will. The appeal was taken by John S. Feigner as administrator of each of two estates, and he will hereinafter be called the plaintiff. One group of defendants filed a plea to the jurisdiction and another group a motion to erase the appeal. Both of these alleged that the motion for appeal did not sufficiently state the interest of the plaintiff. The plea was sustained and the motion was granted. From the judgment dismissing the appeal the plaintiff has appealed to this court.
The essential allegations of the motion for appeal are the following: The plaintiff is the administrator of the estates of Rachael Feigelson and Shlioma
Neither the plea to the jurisdiction nor the motion to erase alleged that the court was without jurisdiction because the appellant was not actually aggrieved by the probate decree. They were grounded solely on the claim that the motion for appeal did not comply with the requirements of § 7075 of the General Statutes. This distinction may be made clearer by comparing the state of pleadings in the present case with that in Sacksell v. Barrett, 132 Conn. 139, 142, 43 A.2d 79. In that case the plea alleged facts showing affirmatively that the appellant was not aggrieved by the decree and consequently the question was whether the court had jurisdiction of the subject matter of the appeal under § 7071 of the General Statutes. When it appears on the face of the record that an appellant is not aggrieved by the decree appealed from, his appeal is void. When he has a grievance but has failed to state his interest in his motion for appeal as required by § 7075, his appeal is merely voidable. Pavlick v. Meriden Trust & Safe Deposit Co., decided this day; Orcutt’s Appeal, 61 Conn. 378, 381, 24 A.2d 276.
Section 7075 reads: “In each appeal from probate . . . the interest of the appellant shall be stated in
The interest required to be stated by § 7075 is an interest in the subject matter of the decree appealed from. To have such an interest a party must (1) have a legal, as distinguished from a sentimental, interest in the estate involved in the decree and (2) that interest must have been adversely affected by the decree. Exchange Buffet Corporation v. Rogers,. supra; Dickerson’s Appeal, 55 Conn. 223, 229, 10 A. 194. We must examine the motion for appeal filed by the plaintiff to determine whether it sets forth both of these elements of interest.
In the first place, it must be noted that the general allegation that the plaintiff is aggrieved is not in itself a sufficient statement of his interest. It sets forth only a conclusion of law which, unless it is supported by facts alleged elsewhere in the motion which show how he is aggrieved, is ineffective. Sacksell v. Barrett, 132 Conn. 139, 147, 43 A.2d 79; Campbell’s Appeal, 64 Conn. 277, 292, 29 A. 494. The motion for appeal now before us, however, alleges far
The allegations which show the interest of the two estates in the decree appealed from are (1) that they are entitled to share in the distribution under the eleventh paragraph of the will and (2) that by the decree appealed from these estates were excluded from participation in the distribution. As regards the first of these, the contention of the defendants is that, because the word “entitled” is used, that, too, is an allegation of a conclusion of law. In this connection they rely upon Averill v. Lewis, 106 Conn. 582, 588, 138 A. 815. In that case we said that “ [t] o assert that the appellants are beneficiaries and interested, is to state a legal conclusion only.” The circumstances under which that statement was made, however, differ radically from those in the present case. The facts which were before the court showed that the appellants were not in truth beneficiaries under the will. Consequently, all that the statement means is that, when it appears that the claim that parties are beneficiaries under a will is incorrect, the addition of a claim that they are interested does not show how they are interested and, therefore, is insufficient.
In so far as § 7075 requires that the motion for appeal show the interest of an appellant in the subject matter of the decree appealed from, it is satisfied if the motion for appeal states the basis of the appellant’s claim of such an interest — that is, if it states the nature of the interest claimed. It is not essential
After the plaintiff alleges that his estates have a right to share in the bequest, the allegation that the probate decree appealed from denied them that right completes the statement of their interest which is required by § 7075. It shows how their property rights have been adversely affected by the decree and therefore how they have been aggrieved. Duncan v. Higgins, 129 Conn. 136, 146, 26 A.2d 849; Dickerson’s Appeal, 55 Conn. 223, 229, 10 A. 194. It follows that the granting of the motion to erase and the sustaining of the plea to the jurisdiction were erroneous.
There is error, the judgment is set aside and the case is remanded with direction to deny the motion to erase and overrule the plea to the jurisdiction and thereafter to proceed with the case in accordance with law.
In this opinion the other judges concurred.