136 A. 571 | Conn. | 1927
Stated generally, the questions presented by this appeal are: (1) whether "the decree of the Court of Probate approving the sale" of the decedent's real estate, and (2) whether the order accepting the final account of the administratrix, should be affirmed or reversed.
The first may be disposed of by the observation that the action of a Court of Probate in accepting and recording a return of sale is simply a ministerial act; the return cannot be rejected, the court can exercise no discretion, but must receive and record it, though the parties in interest are not thereby concluded from investigating the conduct of the fiduciary in making the sale, upon objection to the allowance of his account.Holbrook v. Brooks,
We pass, then, to the objections to the acceptance of the administration account, with special reference to the item wherein the administratrix charges herself with $1,500, as the sale price of the real estate. Angelina Pernigotti, daughter of Angelo Carrara, was appointed administratrix of his estate July 24th, 1920. The inventory, filed November 12th, 1920, included a lot with a house thereon, appraised at $1,400. Some twenty years before, the finding states, Mrs. Pernigotti had bought the place for her mother, Mrs. Carrara, the title being taken in the name of the latter's husband, Angelo Carrara, the decedent. Mrs. Carrara, who was *687 over ninety years of age at the death of her husband, considered that the place belonged to her, and her daughter wished to have her feel that she still owned her home as long as she lived. No effort was made by the administratrix to sell the property until, on March 28th, 1923, a motion was made in the Court of Probate in behalf of the appellant, who is a judgment creditor of a son and heir of the decedent. Thereupon the judge of probate informed the administratrix that it would be necessary to sell the real property and close the estate. On May 7th, 1923, after notice by publication, the Court of Probate ordered the real estate sold at private sale. No public notice of such sale was ordered and none is now required by statute. Public Acts of 1921, Chap. 122. On May 9th the administratrix gave her daughter, Mrs. Zerbola, a deed of the property, the consideration being $1,500, of which $425 was paid in cash, $700 by a personal debt owed by the administratrix to her daughter, and the balance, $375, was unpaid at the time of the acceptance of the account, but has since been fully paid in instalments.
The appellant contends, first, that the sale to the daughter was constructively fraudulent. Near relationship between a fiduciary and a purchaser does not, however, of itself, raise an inference of fraud; it is a circumstance to be considered with all the others in determining the fairness and good faith of the transaction.Schwartz v. Schwartz,
It is further claimed that the sale was invalid because the entire purchase price was not paid in cash at the time of the sale and a part of the consideration was a personal debt owed by the administratrix to her daughter. In this State it is the duty of an administrator to sell for cash only and not on credit or by way of exchange. Foster v. Thomas,
The only remaining reason of appeal which is within the claims of law made upon the trial is that the administratrix's account should not have been accepted "when it appeared at the hearing thereon that the appellant was then willing to pay $2,500 for the property." The finding is that no offer was made to the administratrix until after the sale. At the hearing on the final accounting, July 26th, 1923, the attorney for the appellant stated that the latter would give $2,500. Even if this may be regarded as an offer, it manifestly came much too late to affect the good faith or validity of the sale. Furthermore, it is found that Mrs. Zerbola, after purchasing the property, expended nearly $1,700 upon a portion of it in order to put it in suitable condition for renting.
There is no error.
In this opinion the other judges concurred.