Glemboskiv.Glemboski

Supreme Court of ConnecticutJul 14, 1981
184 Conn. 602 (Conn. 1981)
184 Conn. 602440 A.2d 242

The plaintiff, the widow of J, appealed to the Superior Court from the Colchester Probate Court decree allowing and approving the defendant executor's final account and ordering distribution of J's estate. Although she had taken no appeal to the Superior Court from an earlier order of that probate court in which her widow's allowance had been retroactively modified, she did challenge in the appeal here the executor's failure to include any such allowance as a credit against J's estate. The trial court dismissed the appeal on the ground that the adequacy of the widow's allowance could not be collaterally attacked on an appeal from the final account of the estate and on the further ground that the Probate Court was correct in retroactively modifying the allowance. The plaintiff then appealed to this court. Because, although the trial court erred in considering the issue of the retroactive modification of the widow's allowance, it did not err in dismissing the appeal, as an improper collateral attack on a prior order, its judgment was affirmed.

Argued June 3, 1981

Decision released July 14, 1981

Appeal by the plaintiff from a decree of the Probate Court for the district of Colchester allowing and approving a final account and ordering distribution of an estate, brought to the Superior Court in the judicial district of New London and tried to the court, Hendel, J.; judgment dismissing the appeal, from which the plaintiff appealed to this court. No error.

Richard L. Goldblatt, for the appellant (plaintiff).

Paul B. Groobert, for the appellees (defendants).


This appeal challenges the propriety of an order dismissing an appeal from a probate court decree which allowed and approved an executor's final account and ordered distribution of an estate.

The evidence established the following facts: On February 4, 1969, Joseph Glemboski died. In his will he had established a testamentary trust for the benefit of his widow, the plaintiff Katherine Glemboski, during her life, with the remainder equally to three of his adult children, Leon Glemboski, Edward Glemboski, and Helen Long. These children are the defendants in the present case. Upon application of the defendant Leon Glemboski, as executor of the estate, on February 13, 1970 the Probate Court awarded the plaintiff $400 per month widow's allowance retroactive to March, 1969. Although the executor tendered payment, the plaintiff refused to accept the allowance checks.

A probate court has discretion to order an allowance for support of the surviving spouse which is "necessary for the support of the surviving spouse . . . of the deceased during the settlement of the estate." General Statutes 45-250 (a); see General Statutes 45-250 (b).

Another son, Thomas Glemboski, who was expressly excluded from receiving under the will, contested the admission of the will to probate. In the year prior to his death, the father had transferred his oil business to Thomas. More than five years after their father's death, Thomas, his brothers and sister finally settled the will contest by entering into an agreement dated June 28, 1974. Among other provisions, they agreed that Thomas and his wife would receive $5500 as reimbursement for expenses paid on behalf of the plaintiff and that the plaintiff would receive $100 per month living expenses from trust funds retroactive to April, 1974. The agreement expressly provided for an increase if $100 were insufficient to meet her living expenses. The plaintiff was not a party to the agreement.

In response to the executor's motion to modify and terminate the widow's allowance in accordance with the agreement, an ex parte probate decree of December 12, 1974 retroactively limited the widow's allowance to $5500 and ordered the allowance terminated as of the date that amount had accrued. The plaintiff has not appealed from that decree. The plaintiff, however, did timely appeal from the January 7, 1975 probate decree allowing and approving the final account of the executor and ordering distribution of the estate. The final account did not include any widow's allowance as an outstanding credit against the estate of six claims on the appeal, all were subsequently withdrawn except a challenge to the executors failing to credit amounts allegedly due and payable to' the plaintiff as a widow's allowance. The trial court dismissed the appeal on the grounds (1) that the adequacy of a widow's allowance cannot be collaterally attacked on an appeal from the final account of an estate; and (2) that the Probate Court was correct in retroactively modifying the allowance. The plaintiff appeals to this court from the dismissal of her appeal, claiming that the trial court erred on each of these grounds.

The plaintiff's first claim is that because the plaintiff's appeal from the allowance and the approval of the final account was a proper manner in which to challenge the adequacy of the widow's allowance, the trial court erred in granting the motion to dismiss. On an appeal from an allowance and an approval of a final account, the trial court can "only go so far as to hold that [an item] was not a proper credit." Williamson's Appeal, 123 Conn. 424, 426, 196 A. 770 (1937). Determination of a credit's propriety should be limited to consideration of whether the executor in preparing the account both satisfied his fiduciary obligations and complied with applicable court orders. Cf. Carten v. Carten, 153 Conn. 603, 616, 219 A.2d 711 (1966); Reiley v. Healey, 122 Conn. 64, 71-72, 187 A. 661 (1936); Matthies v. Hackett, 24 Conn. Sup. 470, 473-74, 194 A.2d 532 (1960). Although the propriety of the executor's entries has not been raised in this appeal, the plaintiff indirectly challenges the order modifying the widow's allowance, which order is the reason the executor omitted a credit for the widow's allowance in the final account.

"An appeal from the court's acceptance of the administration account . . . is not the proper way to attack the propriety of [a support] allowance, since this would be an improper collateral attack upon the allowance decree." 2 Locke Kohn, Conn. Probate Practice (1951) 392; Wilhelm Folson, Connecticut Estates Practice: Settlement of Estates (Rev. Ed. 1974) 120; see Williamson's Appeal, supra, 426-27. A collateral attack is a procedurally impermissible substitute for a direct attack on a prior judgment. See, e.g., A. D. Juilliard Co. v. Johnson, 166 F. Sup. 577, 586 (S.D.N.Y. 1957), aff'd, 259 F.2d 837 (2d Cir. 1958), cert. denied, 359 U.S. 942, 79 S.Ct. 723, 3 L.Ed.2d 676 (1959); Lampson Lumber Co. v. Hoer, 139 Conn. 294, 297, 93 A.2d 143 (1952); note, "The Value of the Distinction Between Direct and Collateral Attacks on Judgments," 66 Yale L.J. 526, 533 (1957). Because the plaintiff did not appeal from the order modifying the widow's allowance, the trial court did not err in dismissing her collateral appeal from the allowance and the approval of the final account.

The plaintiff's second claim is that the trial court erred in ruling that a widow's allowance may be modified retroactively. We need not reach this issue because the trial court erred in considering it at all. With respect to the proper manner of appeal, we find no distinction between a challenge to an order limiting a widow's allowance and a challenge to an order limiting the widow's allowance retroactively. Both issues should have been raised in an appeal from the modifying order, not from the allowance and approval of the final account implementing the order. A trial court should not determine matters outside the scope of proper appeals from probate decrees. Matthies v. Hackett, supra, 475.

Although the trial court erred in considering the issue of retroactive modification, the court did not err in dismissing the appeal from the allowance and approval of the final account as an improper collateral attack upon a prior order. If the judgment of a trial court is correct it will stand, regardless of the validity of the court's theory. See, e.g., Carlson v. Kozlowski, 172 Conn. 263, 265, 374 A.2d 207 (1977); Groton v. Commission on Human Rights Opportunities, 169 Conn. 89, 101, 362 A.2d 1359 (1975). We, therefore, affirm the trial court's dismissal of the appeal.