380 A.2d 541 | Conn. Super. Ct. | 1977
The plaintiff, an income beneficiary and remainderman of a trust, has brought this action against the defendant trustee, alleging that certain investments made by the trustee were improper and requesting, inter alia, a declaratory judgment, an accounting and money damages. The defendant has filed a plea in abatement claiming that this court has no jurisdiction over this action for two reasons: first, that there is an accounting proceeding pending in the Probate Court for the district of New Haven where the same parties and issues are involved; and, second, that the plaintiff has "no present claim against this defendant." *137
The defendant's second claim may be dealt with summarily. In so far as it purports to claim that the plaintiff's action is premature, such a claim, if true, would not impair the jurisdiction of the court. It is more properly the subject of a demurrer. SeeHill v. Wright,
The defendant's argument that the proceeding before the Probate Court is a pending action requiring the abatement of this action is a position of different caliber. The defendant attempts to distinguish the facts in the present case from those ofDettenborn v. Hartford National Bank Trust Co.,
The defendant claims that the present case is distinguishable from Dettenborn because in that case a final account in the Probate Court had been submitted prior to distribution of funds to the beneficiary. Thus, the defendant claims, the plaintiff inDettenborn was a creditor of the trust when he instituted his action, whereas here the plaintiff is not now a creditor of the trust and does not claim that the trustee had wrongfully refused to pay trust funds to him. *138
The defendant would have this court give an unduly restrictive construction to the language of the court in Dettenborn. Although there is language in that opinion which indicates that the court accorded substantial weight to the fact that Dettenborn
was a "creditor" of the trust, several considerations mitigate against the conclusion that the fact that some money was owed to the plaintiff at the time of the suit was the controlling factor in the court's decision. Although the trust fund inDettenborn was indeed payable to him at the time of suit, the plaintiff, as here, was also claiming a breach of trust in the method of investing it, a claim which could have been determined by the Probate Court in the pending proceeding. In Dettenborn
the plaintiff was a creditor, yet the extent of his rights was by no means fixed by that fact alone. The remedies unavailable in the Probate Court which are emphasized by the court in Dettenborn
are not strictly those available to a creditor as such: "An action by a beneficiary claiming damages from a trustee for his breach of duty in refusing to pay or deliver the trust fund or in the makingof improper investments is one at law, triable by jury; Barlow Brothers Co. v. Gager,
One of the tests utilized by the courts to determine whether a second action should be abated is "whether the relief sought in the second action, to which abatement is pleaded, is fully covered by, and obtainable under, the relief asked in the prior action ...." 1 C.J.S. 71, Abatement and Revival, § 43. "Thus, in general, when an action is pending in a court of limited jurisdiction, a second action in a higher court with a wider range of remedies will not be abated." 1 Stephenson, Conn. Civ. Proc. § 104(d), p. 425. That is precisely the situation presented here. Whether or not the plaintiff will ultimately prevail in his requests for relief, he is entitled to bring his action in a forum in which a "wider range" of judicial remedies is available to him.
The plea in abatement is, therefore, overruled.
