60 A.2d 779 | Conn. | 1948
Edwin Huhla, administrator of the estate of Agnes Huhla, made written application to the Probate *21 Court for the district of North Branford to order the sale of the real estate of the deceased and to empower him to sell and convey it as provided by statute. The court, upon due notice and hearing, found that there was reasonable cause for granting the application, and made the following order: "Ordered that the real estate described in said application be sold, and that the said administrator be and he is hereby empowered to sell and convey the same at Public sale by sealed bids to be received by said Court on or before eight o'clock P.M., November third, 1947, and that public notice be given by publishing the same three times in some newspaper published in New Haven County and having a circulation in said District and due return make." The plaintiffs, who are four of the six heirs-at-law, appealed to the Superior Court. It found the issue for the defendant administrator and dismissed the appeal. The plaintiffs have appealed to this court.
The application was made under 4945 of the General Statutes, as amended by 670g of the Supplement of 1943, which authorizes a Probate Court to make an order of sale of the real property of an estate "if it shall find reasonable cause therefor" and requires that the court shall in its order "direct whether such sale shall be public or private and, if public, the notice thereof which shall be given." No list of claims had been filed at the time the application was made, and there was no evidence of any outstanding debts against the estate. The plaintiffs contend that a Probate Court has no power to order a sale of real estate under such circumstances, especially when a majority of the heirs oppose a sale. Originally, probate courts had no authority over the real estate belonging to the deceased, but in later times such courts could, by statutory authority, order the sale of so much, and only so much, of the land of the deceased as was necessary *22
to pay any excess there might be of the indebtedness of the deceased over the value of the personal property. Dorrance v. Raynsford,
The court ordered that the real estate be sold, that the administrator be empowered to sell it "at Public sale by sealed bids to be received by said Court on or before eight o'clock P.M., November third, 1947," and that public notice be given by publication in a newspaper. There were only two such sealed bids, one by the administrator for $5000 and one by a plaintiff for $4500. The statute, 670g, provides: "Such court shall, in its order, direct whether such sale shall be public or private and, if public, the notice thereof which shall be given." The plaintiffs contend that the court annexed to the order of public sale a restriction as to *23
the manner of sale and the time when the purchaser might be determined and that it thereby exceeded the authority given to it by the statute. The power of the Court of Probate to order the sale of real estate is not regarded as one that pertains to the ordinary settlement of the estate but is special and statutory, and the rule is that the authority must be strictly followed, otherwise the order will be void. Dorrance v. Raynsford, supra. The Probate Court is authorized by the statute only to order a private or public sale and, if public, the notice thereof which shall be given. In the present case it authorized the administrator to sell at public sale. If he sold, the sale had to be public. Union Mercantile Trust Co. v. Harnwell,
It follows that the order appealed from is void. This decision makes it unnecessary to discuss a further claim of the plaintiffs that the bid of the administrator was invalid.
There is error, the judgment is set aside and the case is remanded with direction to sustain the appeal.
In this opinion MALTBIE, C.J., and JENNINGS, J., concurred; BROWN and DICKENSON, Js., dissented.