Summary
In Fitzhugh v. Fitzhugh, supra, 156 Conn. 625, the plaintiff son appealed from the decree of the Probate Court accepting the account of the conservator, the incapable person's wife.
Summary of this case from Marchentine v. Brittany Farms Health Center, Inc.Opinion
Argued January 2, 1968
Decided January 30, 1968
Appeal from a decree of the Probate Court for the district of Stamford accepting the account of the conservatrix, brought to the Superior Court in Fairfield County at Stamford where the court, Sidor, J., rendered judgment erasing the appeal from the docket, from which the named plaintiff appealed to this court. No error.
Robert W. Worley, Jr., with whom, on the brief, was John F. Spindler, for the appellant (named plaintiff).
Louise H. Hunt, with whom, on the brief, was Irving S. Ribicoff, for the appellee (defendant).
The record reveals these facts: On July 24, 1961, the Probate Court for the district of Stamford appointed Jean R. Fitzhugh as conservatrix of the estate of her husband, William W. Fitzhugh, Sr. On August 4, 1964, the court rendered a decree accepting her account as conservatrix from July 24, 1961, to and including December 31, 1963. From this decree, the named plaintiff moved for an appeal to the Superior Court, alleging that he was aggrieved by the decree in that "[h]e is the only child of the . . . incapable person and is an interested party to any proceedings in connection with the estate of said incapable." The Probate Court allowed the appeal. While the appeal was pending in the Superior Court, Fitzhugh, Sr., died. The Fairfield County Trust Company was named as the temporary administrator of his estate and was permitted to intervene in the appeal as a coplaintiff. On March 8, 1967, the Probate Court admitted the will of Fitzhugh, Sr., which named the Chase Manhattan Bank as executor. The executor was not made a party to the appeal in the Superior Court.
In the Superior Court, the defendant moved that the appeal be erased for want of jurisdiction, in that the named plaintiff, hereinafter referred to as the plaintiff, was not an aggrieved person within the meaning of § 45-288 of the General Statutes and in that the Fairfield County Trust Company, acting as the temporary administrator, had no power to intervene. The court granted the motion and rendered judgment erasing the appeal on the ground that the motion for appeal did not contain supporting allegations setting out the manner in which the plaintiff was adversely affected by the decree of the Probate Court. From that judgment, the plaintiff has appealed to us. The Fairfield County Trust Company has not appealed, and for this reason we need not consider whether the court acted properly in erasing the appeal as to it.
In taking the appeal pursuant to §§ 45-288 and 45-293 of the General Statutes, the plaintiff, to avoid the erasure of his appeal, should have alleged in his motion for appeal the manner in which he was adversely affected by the decree of the Probate Court. Maloney v. Taplin, 154 Conn. 247, 249-51, 224 A.2d 731. The mere statement that he was aggrieved without supporting factual allegations as to the particular nature of his aggrievement was insufficient. Sacksell v. Barrett, 132 Conn. 139, 147, 43 A.2d 79. The allegation in his motion for appeal that he is the only child of the incapable person does not bestow on him a real interest in the matter in controversy. Maloney v. Taplin, supra, 251.
The plaintiff, in his brief, claims that his appeal should not be construed as an appeal in his individual capacity but as an appeal in a representative capacity as either a "de facto guardian or next friend." This claim is without merit. Nowhere in his motion for appeal does he indicate that he was proceeding in a capacity other than on behalf of himself. Also, there is nothing in the order of the Probate Court allowing his appeal which can be construed as a recognition by that court that the plaintiff was acting in a representative capacity.
We note that the record does indicate that the plaintiff was present at the hearing on the account of the conservatrix. He could therefore have requested the appointment of a guardian ad litem to represent his father pursuant to § 45-54 of the General Statutes. The record does not disclose his reason for not making such a request.