[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] PATRICIA L. HARLESTON, JUDGE.[fn1] [fn1] This Court believes this reference was to the Defendant.

MEMORANDUM OF DECISION

This is an appeal from orders of the Probate Court for the District of Andover. The Plaintiff Morris Silverstein, claims that he is an heir at law and creditor of the estate of Esther S. Silverstein and that he is aggrieved by the orders of the Probate Court, dated April 26, 2005 wherein the Probate Court appointed a Committee to execute two notes to the administrator, as fiduciary of the estate, and to his Attorney George B. Goodberg, representing fees approved by the Probate Court by Court Decree September 10, 2004. The plaintiff appealed on two basic grounds: 1) that the Probate Court lacked jurisdiction to order that mortgages be placed upon the Columbia, Connecticut lands inherited by the heirs; and 2) that the fees incurred by the administrator and his attorney are the personal obligation of the fiduciary and not the responsibility of the estate. The trial on this matter was held on December 14, 2006; and the plaintiff's brief was filed on January 30, 2007.

The case has had a long and tortuous history since the death of the decedent in 1969. The following facts are relevant to this action. In October 1994 the administrator of the estate filed a final accounting with the Probate Court. On December 23, 1994 the Probate Court approved the administrator's final accounting and ordered that the assets of the estate be distributed in accordance with the proposed distribution. The proposed distribution provided that the equity in the Columbia property be distributed by thirds to each of the heirs. The Probate Court also approved payment of administrative fees in the amount of $18,300.

That order was appealed by the plaintiff in March 1995. By decision dated January 8, 1998, the Superior Court (Klaczak, J.) ruled on the seventeen issues raised by the plaintiff in the appeal; awarded fees to the fiduciary in the amount of $17,925; found that plaintiff had received money after he was removed as administrator; and referred the case back to the Probate Court stating, "In view of these disclosures, this matter is referred back to the Probate Court for the filing of a supplemental or amended final accounting by the administrator." The Court did not address the order of distribution and no amendments to that decision were ordered. The plaintiff appealed the decision; the Superior Court decision was upheld by the Appellate Court ( 54 Conn.App. 901 (1999)); and certification to appeal that decision was denied by the Supreme Court ( 251 Conn. 905 (1999)). Administrator Laschever hired Attorney Goodberg to represent him, in his capacity as fiduciary of the estate, and claims that he incurred significant expenses defending these appeals. No distribution of property was made after the finalization of these appeals.

On September 25, 2003 the administrator filed an application seeking to sell the Columbia property. By order of the Probate court dated January 15, 2004, the court approved the application of the administrator to sell the property by private sale. The plaintiff appealed this order; and the trial on this matter was held on November 5th and 9th, 2004. By decision dated February 24, 2005, the Superior Court (Scholl, J.) reversed the order of the Probate Court. The Court took no action on the plaintiff's application to distribute the property to the heirs, stating that the order of distribution in the final accounting filed October 9, 1994 remained in effect.

In the meantime, in April 2004, the administrator filed a supplemental final accounting in response to the 1998 Superior Court decision of Judge Klaczak. This supplemental final accounting included fees to the administrator and Attorney Goodberg for defending the appeals. Hearing was held on the supplemental final accounting; and it was approved by the Probate Court in September 2004. The fees to Laschever and Goodberg were never paid.

The administrator then went back to the Probate Court and filed an application to put mortgages on the Columbia property; and on April 26, 2005 Judge Camposeo ruled that the Columbia property was the "only asset of the estate remaining by which the debts of the estate can be satisfied. It is in the best interest of the parties in interest to satisfy outstanding debts of the estate." She ordered that the mortgages be put on the property and that it then be distributed. The property has at this point been distributed with the mortgages.

The plaintiff argues that the final accounting approved in 1994 remained in effect throughout all the activity on this estate; and that the administrator should have distributed the Columbia property even though there was an appeal pending, because the distribution of that property was not one of the issues he raised on appeal. He further argues that the administrator had no further possession, care or control over the property after the filing of his 1994 final accounting; and the Probate Court lacked subject matter jurisdiction to enter any orders regarding the property.

The only hiatus in the activities described above was between the denial of certiori by the Supreme Court in 1999 and the filing of the supplemental final accounting in April 2004. However, there was the matter of the referral of the case back to the Probate Court by Judge Klaczak in 1998. The plaintiff argues that in spite of all that was going on the administrator could have distributed the Columbia property at any time subsequent to the 1994 final accounting. He relies in part on C.G.S § 45a-321, which provides that the court may order surrender of the possession and control of real property to the heirs, or may, during settlement, order distribution of such real property. His reliance is misplaced. "During settlement" is not the same as while an appeal in pending. In his " Motion for Appeal From Probate" filed January 19, 1995, the plaintiff stated:

1. Morris Silverstein and Samuel Silverstein are (1) heirs at law of the deceased and (2) are creditors of said Estate who have expended monies for the benefit of said estate.

2. On December 23, 1994, this court made the following order and decree, namely: see Exhibit "A" attached hereto.

3. The subscribers are aggrieved by the order and decree of this court.

Exhibit "A" is the "Decree re: Administration Account and Distribution" which provides:

WHEREFORE, it is ORDERED AND DECREED that; Said account is allowed and approved. Any unpaid bequests or legacies shall be paid over to those legally entitled thereto. The rest, residue and remainder of said estate be distributed, transferred and paid over to and among the distributees or their fiduciaries by the fiduciary of the estate in accordance with the findings of the court as indicated above; as set forth in the schedule of proposed distribution of said account; according to the statutes of the State of Connecticut covering intestate estates.

The plaintiff appealed the Decree of the Probate Court. The plaintiff contends that because he did not specifically appeal the distribution of the Columbia property in his Reasons of Appeal that that portion of the Decree remained intact and disposable separately from the rest of the Decree. This is illogical. The plaintiff's appeal raised seventeen specific claims. An administrator would be in the position of trying to determine which sections may be affected by the court's decision on the appeal and which section may not. Further, there were issues pending in the appeal which directly applied to the specified property in Columbia, i.e., the plaintiff's sixteenth reason for appeal:

16. The request to place two mortgages of $6,876.55 each plus 10% interest per year, on the Columbia, Connecticut property of the estate, and the decree authorizing the issuance of two notes in conjunction therewith, should be denied and disallowed. The necessity for such actions is non-existent . . .

Testimony was heard and orders made regarding this property. While it is true that the orders of the Probate Court remained in effect until such time as they were ruled upon by the Superior Court, they could not be acted upon, i.e., this property could not have been distributed until the issues on appeal were settled.

The plaintiff argues that selling the property is the same as placing a mortgage on it; and that because the Superior Court denied the attempt to sell the property, the administrator cannot now place a mortgage on it. The power of the Probate Court to order the sale of property is special and statutory and the authority must be strictly followed, otherwise the order of sale will be void. Offredi v. Huhla, 135 Conn. 20, 23, 60 A.2d 779 (1948). Before a sale can be ordered, the court must find that it is in the `best interest of the parties in interest.' General Statutes § 45a-164 (formerly § 45-238). This section of the statutes provides that upon application of an administrator of an estate, and after hearing, the Probate Court may authorize the sale or mortgage of any real property the legal title to which has been acquired by such administrator, if the court finds it would be for the best interest of the parties in interest to grant the application. The administrator is one of the parties in interest in this case.

General Statutes § 45a-166 (formerly § 45-241), provides the procedures for sale whether private or public; and directs that the court must also find that the price and terms of the sale are in the `best interest of the estate.' This section applies only to the sale of real property. The issues being statutory, the burden is on the proponent, in this case the administrator, to establish in the Probate Court, and in the Superior Court, on appeal, the statutory predicate for the court's order. Pastir v. Bielski, 174 Conn. 193, 194, 384 A.2d (1978); D'Agostino v. Amarante, 172 Conn. 529, 530-31, 375 A.2d 1013 (1977); Crane v. Manchester, 143 Conn. 498, 501, 123 A.2d 752 (1956).

The Superior Court (Scholl, J.) found that the administrator had failed to establish how the sale is in the best interest of the parties involved, and reversed the Probate Court's orders. The basis for the Court's decision appears to be the lack of evidence as to the amount of the creditor/administrator's expenses.

Here the proponent of the sale, the administrator, has failed to establish how the sale is in the best interests of the parties involved. Those parties are the heirs and creditors of the estate. Although the Plaintiff claims that the sale is needed for the payment of administrative expenses he provided no evidence as to the amount of administrative expenses previously approved which remain unpaid . . . In addition, there has been no accounting of the $3,206 the Superior Court previously found was collected by the Plaintiff which was properly an asset of the estate . . . Apparently no supplemental or amended final accounting was filed in accordance with the Superior Court's order at the time of the Probate Court orders which are the subject of this appeal. In any event, in the absence of a current accounting, the court cannot determine that the assets of the estate are insufficient to pay the administrator's fees and expenses.

Docket No. CV 04-0083699S, (Scholl, J., February 24, 2005).

The situation today is not as it was in February 2005. There has been a supplemental final accounting filed by the administrator, which includes an accounting of the expenses incurred by Attorneys Laschever and Goodberg in the defense of the appeals against the estate. The Probate Court approved the accounting, finding that the Columbia property was the "only asset of the estate remaining by which the debts of the estate can be satisfied. It is in the best interest of the parties in interest to satisfy outstanding debts of the estate."

This Court agrees, and therefore finds that (1) because the case was referred back to the Probate Court for the filing of an amended or supplemental final accounting, the Probate Court had subject matter jurisdiction to order the mortgages placed on the property; and (2) the administrator therefore retained possession, control and care over the property. The ability of this Court to rule on the amount of the mortgages granted, however, is somewhat problematic.

"An appeal from a Probate Court to the Superior Court is not an ordinary civil action. Slattery v. Woodin, 90 Conn. 48, 50-51, 96 A. 178 (1915); Silverstein's Appeal from Probate, 13 Conn.App. 45, 52-53, 534 A.2d 1223 (1987). When entertaining an appeal from an order or decree of a Probate Court, the Superior Court takes the place of [*4] and sits as the court of probate. Satti v. Rago, 186 Conn. 360, 365, 441 A.2d 615 (1982); Appeal of Stevens, 157 Conn. 576, 581, 255 A.2d 632 (1969); Dunham v. Dunham, 97 Conn. 440, 443, 117 A. 504 (1922); Slattery v. Woodin, supra, 51; Wilson v. Warner, 84 Conn. 560, 564, 80 A. 718 (1911); Hewitt's Appeal from Probate, 53 Conn. 24, 35, 1 A. 815 (1885); Davis's Appeal from Probate, 39 Conn. 395, 400 (1872). In ruling on a probate appeal, the Superior Court exercises the powers, not of a constitutional court of general or common-law jurisdiction, but of a Probate Court. Slattery v. Woodin, supra, Tolles' Appeal from Commissioners, 54 Conn 521, 524, 9 A. 402 (1886); Silverstein's' Appeal from Probate, supra, 53." The function of the Superior Court in appeals from a Probate Court is to take jurisdiction of the order or decree appealed from and to try that issue de novo. Baskin's Appeal from Probate, 194 Conn. 635, 641, 484 A.2d 934 (1984); Satti v. Rago, supra, [186 Conn.] 364-65; Stevens' Appeal, supra, [*5] [157 Conn.] 580-81; Hotchkiss' Appeal, 89 Conn. 420, 432, 95 A.2d (1915); Silverstein's Appeal from Probate, supra, [13 Conn.App.] 54." Kerin v. Stangle, 209 Conn. 260, 263-64, 550 A.2d 1069 (1988). Thereafter, upon "consideration of all evidence presented on the appeal which would have been admissible in the probate court, the superior court should exercise the same power of judgment which the probate court possessed." An appeal from a Probate Court to the Superior Court is not an ordinary civil action. Slattery v. Woodin, 90 Conn. 48, 50-51, 96 A.178 (1915); Silverstein's Appeal from Probate, 13 Conn.App. 45, 52-53, 534 A.2d 1223 (1987). When entertaining an appeal from an order or decree of a Probate Court, the Superior Court takes the place of [*4] and sits as the court of probate. Satti v. Rago, 186 Conn. 360, 365, 441 A.2d 615 (1982); Appeal of Stevens, 157 Conn. 576, 581, 255 A.2d 632 (1969); Dunham v. Dunham, 97 Conn. 440, 443, 117 A. 504 (1922); Slattery v. Woodin, supra, 51; Wilson v. Warner, 84 Conn. 560, 564, 80 A. 718 (1911); Hewitt's Appeal from Probate, 53 Conn. 24, 35, 1 A. 815 (1885); Davis's Appeal from Probate, 39 Conn. 395, 400 (1872). In ruling on a probate appeal, the Superior Court exercises the powers, not of a constitutional court of general or common-law jurisdiction, but of a Probate Court. Slattery v. Woodin, supra, Tolles' Appeal from Commissioners, 54 Conn. 521, 524, 9 A. 402 (1886); Silverstein's Appeal from Probate, supra, 53. "The function of the Superior Court in appeals from a Probate Court is to take jurisdiction of the order or decree appealed from and to try that issue de novo. Baskin's Appeal from Probate, 194 Conn. 635, 641, 484 A.2d 934 (1984); Satti v. Rago, supra, [186 Conn.] 364-65; Stevens' Appeal, supra, [*5] [157 Conn.] 580-81; Hotchkiss' Appeal, 89 Conn. 420, 432, 95 A.26 (1915); Silverstein's Appeal from Probate, supra, [13 Conn.App.] 54." Kerin v. Stangle, 209 Conn. 260, 263-64, 550 A.2d 1069 (1988). Thereafter, upon "consideration of all evidence presented on the appeal which would have been admissible in the probate court, the superior court should exercise the same power of judgment which the probate court possessed and decide the appeal as an original proposition unfettered by, and ignoring, the result reached in the probate court." Prince v. Sheffield, 158 Conn. 286, 298, 259 A.2d 621 (1969); Andrews v. Gorby, 237 Conn. 12, 16, 675 A.2d 449 (1996).

In this case the Probate Court appointed a Committee to execute a note for the sum of $5,591 payable to Attorney Richard B. Laschever, and to execute a note for the sum of $7,475 payable to Attorney George B. Goodberg. The supplemental final accounting which the Probate Court held a hearing on, and upon which the court based its order granting the mortgages was not presented to this Court. In addition, there was no record made of the proceedings before the Probate Court. This Court, therefore, does not have before it the detailed attorneys' bills regarding the expenses incurred by them. The parties testified, that the plaintiff is seeking to appeal the supplemental final accounting; that the Probate Court has refused to allow the appeal; and that there are mandamus actions pending in the Superior Court to force the appeal to be allowed. It was unclear to this Court how many mandamus actions are pending and what had or had not been denied already.

The plaintiff, however, also testified at the trial that he had no argument about the amount of Attorney Goodberg's fees. His only argument was that they should not be paid by the estate but by the administrator who hired him, Attorney Laschever. He did not think the amount of the fees was unreasonable. Trans., December 14, 2006; pp. 59-60. Attorney Laschever testified that Attorney Goodberg spent many hours in preparation for the trial, pretrial hearings and the trial itself. He felt that the charges that Attorney Goodberg submitted were far below what lawyers charge for equivalent services. Trans., December 14, 2006, pp. 90-91. With regard to the fees claimed by Attorney Laschever, the plaintiff felt that he was basically not entitled to anything. Attorney Laschever testified that he spent hours discussing and assisting Attorney Goodberg with the appeal; and that in the ten years between the 1994 final accounting and the 2004 supplemental final accounting, he spent approximately 60 hours on work related to the estate. Trans. December 14, 2006, pg. 93. Based on this testimony, the Court believes the fees charged by Attorneys Goodberg and Laschever were reasonable.

The second issue of the Plaintiff in this appeal is that the expenses incurred by the administrator and attorney hired by the administrator to defend against the appeals are the personal debt of the administrator and should not be paid from the assets of the estate. This Court disagrees with the plaintiff's position, as did the Superior Court in 2005.

"Expenses of administration incurred during the settlement of an estate should be allowed as a matter of course if properly incurred. Hewitt v. Beatie, 106 Conn. 602, 38 A. 795 (1927). The test of allowableness of items of administration expense is whether they are equitably chargeable to the estate because properly and reasonably incurred for the benefit of the estate. Brown v. Eggleston, 53 Conn. 110 (1885) . . . An administrator is entitled to a reasonable compensation for his services, depending upon the circumstances of the case. `Reasonable' means what is fair in view of the size of the estate, the responsibilities involved, the character of the work required, the special problems and difficulties met in doing the work, the results achieved, the knowledge, skill and judgment required of and used by the administrator, the manner and promptitude in which the estate has been settled, and the time and service required, and any other circumstances which may appear in the case and are relevant and material to this determination. Hayward v. Plant, 98 Conn. 374, 384-85, 110 A. 341 (1923)." Lenczyk v. Georgetti, Superior Court, Judicial District of Hartford/New Britain at New Britain, Docket No. CV 96-0472840S (Keller, J., January 29, 1997), affirmed, 48 Conn.App. 903 (1998), cert. den. 244 Conn. 932 (1998). In the over ten years since the last approval of his fees, it can be assumed that the Administrator has incurred additional expenses in administering the estate, especially in defending the appeals from the 1994 Probate Court decision. Such expenses are an appropriate charge to the estate.

Docket No. CV 04-0083699S, (Scholl, J., February 24, 2005).

Therefore, for all of the reasons stated herein, the order of the Probate Court is upheld and the appeal is denied.