Opinion
No. CV02 39 28 06 S
September 24, 2003
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS
This is an appeal from an order of the Probate Court for the Town of Fairfield filed by Elinor Marshall, the executrix of the estate of the late Richard M. Marshall.
Until his death Richard M. Marshall had been trustee of the Jane Alexander Taylor Trust. He was also executor and trustee of the Jane Alexander Taylor estate. After the death of Mr. Marshall, by decree dated March 15, 2002 the Probate Court appointed a successor trustee for the Alexander trust and a successor executor and trustee for the Alexander estate. The plaintiff has appealed that decision.
A probate appeal is a statutory action that requires that the plaintiff be aggrieved by the action of the Probate Court. The aggrievement must be stated in the motion or apparent from the probate record. Connecticut General Statutes Section 45a-191.
Connecticut General Statutes Section 45a-186 provides in pertinent part:
Any person aggrieved by an order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the superior court for the judicial district in which such court of probate is held.
The question is this case is whether the plaintiff has standing to bring the instant action. "Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action . . . Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved . . . The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision." (Citation omitted; internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 441-42, 804 A.2d 152 (2002). "Where a plaintiff lacks standing to sue, the court is without subject matter CT Page 10880-dl jurisdiction." (Citations omitted; internal quotation marks omitted.) Russell v. Yale University, 54 Conn. App. 573, 573-74, 737 A.2d 941 (1999).
An appeal from a probate decision is regulated by statute. "No person has the right to appeal except a person aggrieved, and no person can be aggrieved within the meaning of the statute unless he is interested in the state, either as creditor, legatee or heir-at-law, or in some pecuniary manner. A grievance to his feelings of propriety or sense of justice is not such a grievance as gives him a right of appeal." Hartford National Bank Trust Co. v. Malcolm-Smith, 129 Conn. 67, 69, 26 A.2d 234 (1942). Here the plaintiff must show a pecuniary or legal interest. The probate order must affect the interest. A trustee removed by the Probate Court ordinarily does not have standing to appeal. Hartford National Bank Trust Co. v. Malcolm-Smith, 129 Conn. at 69-70. Those with former interests in the estate similarly are not aggrieved. Ellington v. Estate of Marion Bieth, No. 0521887S, Superior Court, Judicial District of Hartford-New Britain at Hartford (August 19, 1993, Aurigemma, J.) ( 9 Conn.L.Rptr. 618).
The plaintiff in this action has not established a legally sufficient interest, personal right or status in the underlying probate matter. There must be a certainty, as opposed to a possibility, that the requisite interest has been affected. The plaintiff's status as the executrix of the estate of a former trustee and executor is far too tenuous to give rise to a legally protected interest. See Appeal from Probate of Bencivenga, 30 Conn. App. 334, 337, 620 A.2d 195 (1993), affirmed, 228 Conn. 439, 636 A.2d 832 (1994); Buchholz's Appeal From Probate, 9 Conn. App. 413, 417, 519 A.2d 619 (1987).
The Motion to Dismiss is granted.
DEWEY, J.