Opinion
No. CV 06 400 64 01
October 4, 2007
MEMORANDUM OF DECISION
The defendant, Mark A. Slavtcheff, (defendant administrator) is the administrator of the estate of his late father, Stephen Slavtcheff, who died intestate. Stephen Slavtcheff died owning real estate in East Lyme known as 33 Upper Walnut Road and Lot #6 Upper Walnut Road (the property). The property was inventoried at $470,919.
The defendant administrator listed the property for sale by an Exclusive Listing Contract on May 12, 2006. The asking price in the listing was $450,000.
On May 21, 2006, the plaintiffs, Paula and Jeffrey Taylor submitted an offer to purchase for $430,000. On May 25, 2006, the plaintiffs made an offer of $450,000. The defendant administrator accepted this offer "subject to probate court approval." Purchase and Sale Agreement, May 25, 2006, Exhibit 8. The defendant administrator applied to the probate court for permission to sell the land to the plaintiffs for $450,000.
On June 6, 2006, the defendant, John Chester, submitted a $450,000 offer. On June 12, 2006, defendant Chester submitted a $475,000 offer.
A hearing on the application for permission to sell the property to the plaintiffs for $450,000 was held on June 21, 2006. The plaintiffs, defendant Chester, and the defendant administrator were present at the hearing.
At the June 21, 2006 hearing, the probate court, faced with multiple offers, ordered the plaintiffs and defendant Chester to submit sealed bids by June 23, 2006.
On June 21, 2006, defendant Chester submitted a $510,000 bid. On June 23, 2006, the plaintiffs submitted a $480,000 bid.
On June 28, 2006, the probate court approved the sale to defendant Chester for $510,000 and issued a decree for the sale of the real property.
On July 10, 2006, the defendant administrator and defendant Chester executed a contract for the sale to defendant Chester for $510,000 in accordance with probate court's decree.
This appeal followed.
This court heard the parties on September 5, 2007.
An appeal may be taken by "[a]ny person aggrieved by any order, denial or decree of a probate court of probate." General Statutes § 45a-186(a). The plaintiffs must prove aggrievement.
The parties filed a Stipulation of Facts dated September 4, 2007. Several facts set forth therein are germane to the aggrievement issue. The plaintiffs made an offer to purchase for 450,000 which defendant accepted "subject to probate court approval. Id., ¶ 8. The defendant administrator applied to the probate court for approval of the contract for sale to the plaintiffs. ¶ 9. A hearing on the "approval" was scheduled. ¶ 10. At the hearing, the probate court implicitly rejected approval. It ordered the plaintiffs and defendant Chester to submit sealed bids. ¶ 14. Thereafter, the probate court approved a sale to defendant Chester and entered a decree to that effect. ¶ 17. That decree is the subject of this appeal.
The Appellate Court has stated:
The general rule is that a disappointed bidder lacks standing to commence a legal action. Ardmare Construction Co. v. Freedman, 191 Conn. 497, 501-02, 467 A.2d 674 (1983). In probate matters, however, a much broader base of aggrievement is created by General Statutes § 45-288. That statute provides in part as follows: `Any person aggrieved by an order, denial or decree of a court of probate in any matter . . . may appeal therefrom to the superior court . . .' (Emphasis added.) `While one who bids upon the property of an estate offered for sale has no interest in the property itself, he does have an interest in the proceedings employed by the court to approve the sale.' Merrimac Associates, Inc. v. Disesa, 180 Conn. 511, 517-18, 429 A.2d 967 (1980); Doyle v. Reardon, 11 Conn.App. 297, 304-05, 527 A.2d 260 (1987). Under this broad definition of aggrievement, the plaintiffs had standing to appeal the Probate Court's order to the Superior Court. Bishop v. Bordonaro, 20 Conn.App. 58, 60-61 (1989).
This case was not a probate appeal.
The plaintiffs are aggrieved.
This court's role in this de novo proceeding is limited.
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, 364-65; Stevens' Appeal, supra, 580-81; Hotchkiss' Appeal, 89 Conn. 420, 432, 95 A. 26 (1915); Silverstein's Appeal from Probate, supra, 54. 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). Kerin v. Stangle, 209 Conn. 260, 264 (1988).
The parties have submitted a stipulation of the facts and have submitted an agreed upon compilation of the relevant exhibits.
This case involves an administrator's sale of real estate. There is a relevant statute.
(a) Upon the written application of the conservator of the estate of any person, guardian of the estate of any minor, temporary administrator, administrator or trustee appointed by the court, including a trustee of a missing person, or the executor or trustee under any will admitted to probate by the court, after such notice as the court may order and after hearing, the court may authorize the sale or mortgage of the whole or any part of, or any easement or other interest in, any real property in this state of such person, minor, missing person, deceased person or trustee, or of any real property the legal title to which has been acquired by such temporary administrator, administrator, executor or trustee, if the court finds it would be for the best interests of the parties in interest to grant the application. General Statutes § 45a-164.
In order for an administrator to sell an estate's real property, approval of the probate court is necessary. Probate court approval is a statutory prerequisite for a binding, contractual obligation for the sale of an estate's real property. Kerin v. Stangle, supra, 209 Conn. 267 n. 8. Kerin's footnote 8 cites Elmendorf v. Poprocki, 155 Conn. 115 (1967). The May 25, 2006 contract between the plaintiffs and the defendant administrator would not be binding until the probate court approved it. The probate court never approved it.
In their Reasons of Appeal, dated September 26, 2006, the plaintiffs claim: Upon receipt of same (defendant Chester's $510,000 offer), the Defendant Administrator refused to continue to endorse same (the contract dated May 25, 2006) to sell to the Taylors for $450,000) with the Probate Court for the District of East Lyme, despite having executed the Contract of Sale with the Plaintiffs and despite having submitted said Contract of Sale to the Probate Court for the District of East Lyme for approval. Reasons of Appeal, September 26, 2006, ¶ 8, pp. 2-3. [102].
In a similar vein, plaintiffs claim:
The Defendant Administrator was duty bound to support, endorse, and honor the Plaintiff s' Contract of Sale which matched the listing price established by the Defendant Administrator. Reasons of Appeal, September 26, 2006, ¶ 13 c, p. 4. [102].
During oral argument before this court, the plaintiffs' counsel argued that the defendant administrator had a duty to persuade the probate court to approve the contract with the plaintiffs, and had the defendant administrator done so, the probate court should have approved it.
This court, sitting de novo, has the same question before it. There is a flaw in the plaintiffs' argument. The defendant administrator is a fiduciary for the estate. He has a duty to act in the best interests of the estate. The plaintiffs would impose a duty on the defendant administrator to pursue their (plaintiffs') interest before the probate court (and this court) even though that is not in the best interest of the estate. Our law does not place a fiduciary in such a position. On May 31, 2006, there were no other offers. The defendant administrator duly submitted an application, dated May 31, 2006 for the sale to the plaintiffs to the probate court. The defendant fulfilled his obligations to the plaintiffs.
A hearing on the application to sell to the plaintiffs for $450,000 was scheduled in the probate court for June 21, 2006.
The probate court on June 21, 2006 took no final action on the pending application to approve the $450,000 sale to the plaintiffs. Plaintiffs and defendant Chester were each given the opportunity to make another offer. Both the plaintiffs and Chester made significantly higher offers than each had done previously.
Plaintiffs have made some claim that when they submitted their $480,000 offer on June 23, 2006, they reserved their rights under the May 25, 2006 contract with the defendant administrator. See Transcript of Court Proceedings, September 5, 2007. p. 8. The court has examined that contract; there is nothing therein showing or expressing any such reservation of rights. Exhibit 14. And, more importantly, the May 25, 2006 contract was never approved by the probate court. Therefore, the plaintiffs had no rights under it. See discussion @ pp. 3-4, above.
Mr. McCoy:* Yes, with the qualification — and the exhibit will reflect this — when my client made his bid, it was qualified by the fact that he was saying, I'm not sure I have to make this bid, but since I've been required to do this, he made it based on — he's reserving his rights if you will." Transcript of Court Proceedings, September 5, 2007, p. 8. *Plaintiffs' attorney.
This court, is now called upon to decide de nova what it should do faced with the situation the probate court had on June 21, 2006.
The trial court in Bishop v. Bordonaro, 20 Conn.App. 58 (1989), had a like fact pattern. The Appellate court stated:
It is the duty of the court to determine what would be in the best interest of the estate. General Statutes 45-238(a). That determination rests within the discretion of the Probate Court and, on appeal, with the Superior Court. Kerin v. Stangle, supra, 264. We are satisfied that there was ample evidence to support a finding that a sale to Colonial for $30,000 more than the plaintiffs were offering was in the best interest of the estate. Thus, the Superior Court's decision was a legal and reasonable exercise of its discretion. Bishop v. Bordonaro, 20 Conn.App. 58, 67 (1989).
Now § 45a-164(a).
209 Conn. 260 (1988).
The court would permit the Taylors and Chester to submit another offer.
The plaintiffs submitted a bid of $480,000. Defendant Chester submitted a $510,000 bid. Defendant Chester's bid was $30,000 higher than the plaintiffs. The defendant Chester's $510,000 bid must be approved, as it was clearly in the best interest of the estate.
This court approves the sale of the subject real estate to John Chester for $510,000.
The probate court had approved this sale. The probate court order which is the subject of this appeal stated in part:
"And it is ORDERED AND DECREED that:
The real property described in said application be sold, and the fiduciary is hereby empowered to sell and convey same at private sale to John Chester for the sum of $510,000, payable in cash at the time of transfer." Decree for Sale or Mortgage of Real Property, June 28, 2006. Exhibit 15.
The Supreme Court has stated:
It is true that the mere taking of an appeal from a probate decree does not in and of itself vacate or suspend the decree. Silverstone v. Lillie, 141 Conn. 104, 107, 103 A.2d 915 (1954); White v. Strong, 75 Conn. 308, 312, 53 A. 654 (1902). As noted in Livingston's Appeal from Probate, 63 Conn. 68, 75, 26 A. 470 (1893), `[i]f the appeal had been withdrawn or dismissed in the Superior Court . . . the (probate] decree would have remained valid . . .' See also Silverstone v. Lillie, supra. 107; Merrells v. Phelps, 34 Conn. 109, 112 (1867). That is, the probate decree appealed from continues `in full force' until the appellate tribunal otherwise determines. Pettee v. Hartford-Connecticut Trust Co., 105 Conn. 595, 603, 136 A. 111 (1927); Dickinson's Appeal from Probate, 54 Conn. 224, 231, 6 A. 422 (1886).
Kerin v. Stangle, 209 Conn. 260, 265 (1988).
Accordingly, the decree of the probate court entered on June 28, 2006 is hereby affirmed and approved.
This appeal is dismissed.