4 Conn. App. 436 | Conn. App. Ct. | 1985
This case presents the question of whether the. trial court erred in dismissing the named plaintiff’s
“Stephen T. Huber of East Lyme, Connecticut, if he survives me, is to have first refusal to buy the property (three acres, more or less) and the house and out
The Probate Court, after notifying the interested parties and holding a hearing, denied the application to sell the property privately. The executor and the plaintiff pursuant to General Statutes § 45-288 appealed that denial to the Superior Court, which affirmed the denial.
The Probate Court stated its reasons for denying the application. The first reason was that the pertinent clause in the will, particularly the language “first refusal” was ambiguous and therefore the will had to be construed which was beyond its jurisdiction. It also reasoned that the sale price was significantly below the appraised value and, consequently, that the best interests of the charitable residuary beneficiary, the defendant St. Labre Indian School Educational Association, would not be served by such a sale.
The Superior Court, sitting as an appellate court of probate, construed the will and held that the relevant testamentary language concerning the right of first refusal was void for uncertainty. Furthermore, it implicitly found Celia Jacobs Stevenson was a fiduciary and owed a duty to all the beneficiaries of the estate, which she breached by agreeing to a sale price well below the appraised value and by purchasing certain personalty from the estate through the plaintiff. Additionally, the court found that the executor sold personalty to the plaintiff separately, contrary to the express provisions of the testatrix’ will.
On appeal, the plaintiff claims that the trial court erred in concluding (1) that the clause in the testatrix’
The central issue on appeal is whether the trial court erred in construing the relevant testamentary language.
“The General Assembly has not empowered them [Probate Courts] to determine directly and conclusively the construction to be given to wills and codicils.” Burnham v. Hayford, 141 Conn. 96, 100, 104 A.2d 217 (1954). Probate courts are without jurisdiction to construe a will unless the construction “is merely incidental to the determination of a matter within the court’s express statutory jurisdiction.” Id., 100-101; see Hart
In this case, the Probate Court, recognizing that it had no power to construe a will, and that any construction was not incident to a determination of to whom a sale should be made within the express statutory authority of General Statutes § 45-238, correctly directed that the plaintiff and the executor bring an action to construe the will. Here, the testatrix’ will provided the executor with power to sell the real estate without the approval of the Probate Court.
There is no error.
In this opinion the other judges concurred.
The executor of Cleo M. Millerbaugh’s estate, H. Judson Carr, was also named as a plaintiff but is not involved in this appeal. Stephen T. Huber is hereinafter referred to as the plaintiff.
General Statutes § 45-238 provides in pertinent part: “(a) Upon the written application of the conservator of the estate of any incapable person, guardian of the estate of any minor, administrator or trustee appointed by the court, including a trustee of a missing person, or the executor or trustee under any will admitted to probate by the court, after public notice and other notice which the court may order and after hearing, the court may authorize the sale or mortgage of the whole or any part of, or any easement or other interest in, any real property in this state of any incapable person, minor, missing person, deceased person or trustee, or of any real property the legal title to which has been acquired by such administrator, executor or trustee, if the court finds it would be for the best interests of the parties in interest to grant the application.”
General Statutes § 45-241 (a) provides: “The court of probate in ordering a sale under the provisions of sections 45-238, 45-240 to 45-244, inclusive, and 45-27M shall direct whether the sale shall be public or private. If a public sale is directed, the court shall direct the notice thereof which shall be given. If a private sale is directed, the court may, if it appears to be for the best interests of the estate, determine the price and the terms of the sale, including purchase money mortgage or mortgages, as it considers reasonable and advisable.”
In light of our holding that the trial court exceeded its jurisdiction by construing the will, this court does not reach the issues presented involving alternate grounds on which the trial court’s decision may be upheld.
Courts regularly construe wills, divining the testatrix’s intent by examining the language used and the relevant surrounding circumstances. Kane v. Kane, 107 Conn. 716, 721, 142 A.2d 466 (1928). It is a rare case where a will provision cannot be given effect because it is void for uncertainty. Other jurisdictions have been able to interpret similar testamentary language to that at issue here. Weiskircher Estate, 384 Pa. 619, 122 A.2d 60 (1956); Snyder v. Snyder, 75 Iowa 255,39 N.W. 297 (1888); annot., 13 A.L.R. 4th 947.
Paragraph eight of the will provided the executor the power to sell any realty or personalty of the estate.