Opinion
CV176073440S
09-20-2018
Donna ROWE, et al. v. Roseata ANDREWS
UNPUBLISHED OPINION
Wilson, J.
I
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
On September 8, 2017, the plaintiffs, Donna Rowe and Michael Charm, filed a complaint appealing from the decision of the Court of Probate for the District of Hamden, dated August 16, 2017, appointing the defendant, Roseata Andrews, administrator of the estate of Richard Charm (the decedent). The complaint alleges the following facts. The decedent died on June 25, 2017. The decedent’s son, only child, and sole heir is Michael Charm. Rowe is the decedent’s ex-wife and the mother of Michael Charm. Michael Charm wished and wishes his mother to be administrator of the decedent’s estate, and Rowe applied for administration of the decedent’s estate on July 25, 2017. Andrews had also applied for administration of the decedent’s estate on July 7, 2017, although she did not have standing to do so. After a hearing, and over objection, the Probate Court appointed Andrews as administrator. The Probate Court’s order is in violation of General Statutes § § 45a-437 and/or 45a-303. The plaintiffs seek a judgment vacating the Probate Court’s decision, an order appointing Rowe administrator, interests, costs, and such other relief as the court deems proper.
Michael Charm died suddenly on March 12, 2018. On April 10, 2018, the parties went on the record and, pursuant to General Statutes § 52-599(b), the court ordered that counsel for the plaintiffs file a motion to substitute administrator of Michael Charm’s estate on or before May 25, 2018. The parties agreed that the court would have 120 days from the granting of the motion to substitute to issue its decision on the present appeal. On May 24, 2018, the plaintiffs submitted an application for permission to substitute administrator, naming Daniela Innaimo, the mother of Michael Charms’ two minor children, as the lawfully appointed administrator of Michael Charm’s estate, and moving to substitute her as a party plaintiff. The application noted that she joins the position of Michael Charm taken at trial. The application was granted on May 24, 2018. For clarity, Rowe and Michael Charm, through Innaimo, will collectively be referred to as the plaintiffs, and individually by name as appropriate.
For clarity, although the summons, complaint, and pleadings all spell the defendant’s name as Rosetta Andrews, the defendant testified that her first name is spelled Roseata, and it appears as such on the defendant’s petition for administration dated July 7, 2017. See Pls.’ Ex. 2.
The plaintiffs filed a motion for stay on October 13, 2017, which the court, Abrams, J., denied on November 20, 2017. In the interim, Andrews filed an answer on November 8, 2017. A trial de novo was held on January 10, 2018. The plaintiffs filed a post-trial brief on February 8, 2018. Andrews filed her post-trial brief on March 14, 2018, to which the plaintiffs filed a reply brief on March 16, 2018.
See footnote 1 of this decision. The parties agreed that the court would have 120 days from the granting of the motion to substitute to issue its decision on the present appeal. The motion to substitute was granted on May 24, 2018.
II
STANDARD OF REVIEW FOR PROBATE APPEALS
"The Superior Court has the statutory authority to hear and determine appeals brought by a person aggrieved by any Probate Court order, denial or decree." Lesnewski v. Redvers, 276 Conn. 526, 531, 886 A.2d 1207 (2005). General Statutes § 45a-186(a) provides in relevant part: "Except as provided in sections 45a-187 and 45a-188, any person aggrieved by any order, denial or decree of a Probate Court in any matter, unless otherwise specially provided by law, may, not later than forty-five days after the mailing of an order, denial or decree for a matter heard under any provision of section 45a-593, 45a-594, 45a-595 or 45a-597, sections 45a-644 to 45a-677, inclusive, or sections 45a-690 to 45a-705, inclusive, and not later than thirty days after mailing of an order, denial or decree for any other matter in a Probate Court, appeal therefrom to the Superior Court. Such an appeal shall be commenced by filing a complaint in the superior court in the judicial district in which such Probate Court is located, or, if the Probate Court is located in a probate district that is in more than one judicial district, by filing a complaint in a superior court that is located in a judicial district in which any portion of the probate district is located ... The complaint shall state the reasons for the appeal. A copy of the order, denial or decree appealed from shall be attached to the complaint. Appeals from any decision rendered in any case after a recording is made of the proceedings under section 17a-498, 17a-543, 17a-543a or 17a-685, sections 45a-644 to 45a-667v, inclusive, or section 51-72 or 51-73 shall be on the record and shall not be a trial de novo." "The absence of a record requires a trial de novo." Andrews v. Gorby, 237 Conn. 12, 16, 675 A.2d 449 (1996).
"[A]n appeal from a probate order or decree to the Superior Court is not a civil cause of action. It has no more of the ordinary attributes of a civil action than the original proceedings in the court of probate ... [A]ppeals from probate are not civil actions because it has always been held that the Superior Court, while hearing appeals from probate, sits as a court of probate and not as a constitutional court of general or common-law jurisdiction. It tries the questions presented to it de novo, but in so doing it is ... exercising a special and limited jurisdiction conferred on it by the statute authorizing appeals from probate." (Internal quotation marks omitted.) In re Probate Appeal of Cadle Co., 152 Conn.App. 427, 439, 100 A.3d 30 (2014).
"In a probate appeal, the Superior Court cannot consider events that occurred after the issuance of the order or decree appealed from ... The appeal brings to the Superior Court only the order appealed from. The order remains intact until modified by a judgment of the Superior Court after a hearing de novo on the issues presented for review by the reasons of appeal ... The Superior Court may not consider or adjudicate issues beyond the scope of those proper for determination by the order or decree attacked." (Citation omitted; emphasis in original.) Silverstein’s Appeal from Probate, 13 Conn.App. 45, 54, 534 A.2d 1223 (1987). "Although the Superior Court may not consider events transpiring after the Probate Court hearing ... it may receive evidence that could have been offered in the Probate Court, whether or not it actually was offered." (Citation omitted.) Gardner v. Balboni, 218 Conn. 220, 225, 588 A.2d 634 (1991).
"As to the order or decree appealed from, the jurisdiction of the Superior Court is coextensive with that of the Probate Court in the first instance. [I]f a de novo trial which will be fully effective is to be granted in the superior court on appeal from a probate decree, the superior court must logically be given the same power as the probate court itself had, including any discretionary power. In other words, after 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." (Internal quotation marks omitted.) Silverstein’s Appeal from Probate, supra, 13 Conn.App. 54-55. "[A]ny discretion of the probate court, even though it has been denominated in our cases as sound or primary or exclusive, or as existing in the first instance, passes to the superior court on appeal and is to be exercised by it in an independent determination, without regard to the result reached by the probate court ... This is now the guiding rule for the Superior Court in a probate appeal." (Citation omitted; internal quotation marks omitted.) Id., 55. "[O]nce a probate appeal is heard and a judgment rendered in the Superior Court, the Superior Court judgment supplants the probate decree or order." Kerin v. Stangle, 209 Conn. 260, 265, 550 A.2d 1069 (1988).
III
DISCUSSION
At the trial de novo on January 10, 2018, the plaintiffs offered the testimony of Michael Charm, Rowe, and Andrews in support of their argument that Andrews does not have standing to file an application for administration, and that Rowe is the more appropriate administrator of the decedent’s estate. The plaintiffs also submitted the following evidence: Michael Charm’s birth certificate (Ex. 1); the Probate Court records (Ex. 2); and a photograph of the decedent’s home (Ex. 3). In support of her argument that she should remain administrator of the decedent’s estate, Andrews offered the testimony of Craig Henrici, Andrews, and Joseph Lee, and submitted the following evidence: the decedent’s living will (Ex. A); a letter from Henrici to Michael Charm (Ex. B); and Superior Court records (Ex. C).
At the status conference on April 10, 2018, the plaintiffs also submitted Innaimo’s petition to be appointed administrator for Michael Charm’s estate, dated April 9, 2018 (Ex. 4).
After hearing testimony and reviewing the evidence submitted, the court, Wilson, J., found that Andrews was not a creditor of the decedent’s estate. The plaintiffs moved to dismiss the case on the ground that, without an interest in the decedent’s estate, Andrews lacks standing to apply to be administrator. The court reserved decision, and the parties filed post-trial briefs.
In their post-trial brief, the plaintiffs argue that, because Andrews is not a creditor, she does not have standing to apply to be administrator of the decedent’s estate, and further, cannot object to Rowe’s appointment. In her post-trial brief, Andrews maintains that she is a creditor. She further argues that, as a creditor, she can object to the appointment of Rowe as administrator, and that the court has discretion to appoint any other person the court deems proper. Relying on the testimony of Henrici and Lee, Andrews argues that it was the decedent’s wishes to have Andrews appointed as fiduciary of his estate.
A
The present case involves the interpretation and application of General Statutes § 45a-303, which provides in relevant part: "(a)(1) When any person domiciled in this state dies intestate, the court of probate in the district in which the deceased was domiciled at his death shall have jurisdiction to grant letters of administration ... (b) Upon application for letters of administration to the court of probate having jurisdiction of the estate of an intestate decedent, the court shall, before granting letters of administration, after notice required by this section, hold a hearing. Notice of such hearing, either public notice, personal notice or both as the court deems best, shall be given to all persons interested in such estate, including the Commissioner of Revenue Services in the case of a nondomiciliary decedent, unless all persons so interested sign and file in court a written waiver of such notice, or unless the court, for cause shown, dispenses with such notice ... (c)(1) Upon hearing as required by this section, the court of probate having jurisdiction shall grant administration of the intestate decedent’s estate to any one or more persons or their designees appointed in the following order, provided such person or persons are entitled to share in the estate of the decedent: (A) The surviving spouse, (B) any child of the decedent or any guardian of such child as the court shall determine, (C) any grandchild of the decedent or any guardian of such grandchild as the court shall determine, (D) the decedent’s parents, (E) any brother or sister of the decedent, (F) the next of kin entitled to share in the estate, or, on their refusal, incapacity or failure to give bond or upon the objection of any heir or creditor to such appointment found reasonable by the court, to any other person whom the court deems proper."
"The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply ... When construing a statute, [the court’s] fundamental objective is to ascertain and give effect to the apparent intent of the legislature ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case ..." Keller v. Beckenstein, 305 Conn. 523, 532, 46 A.3d 102 (2012). "It is a well established principle of statutory interpretation that we cannot accomplish a result that is contrary to the intent of the legislature as expressed in the [statute’s] plain language ... [A] court must construe a statute as written ... Courts may not by construction supply omissions ... The intent of the legislature, as [our Supreme Court] has repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say ... [I]t is not the function of the courts to enhance or supplement a statute containing clearly expressed language." (Citation omitted; internal quotation marks omitted.) State v. Obas, 320 Conn. 426, 435-36, 130 A.3d 252 (2016).
B
Andrews is Not a Creditor
On the basis of the evidence and testimony presented at trial, the court, Wilson, J., ruled from the bench, and found that Andrews was not a creditor of the decedent’s estate. "[A] party who holds a claim against an estate must present that claim first to the fiduciary." Keller v. Beckenstein, supra, 305 Conn. 533. General Statutes § § 45a-353 et seq. govern claims against decedents’ estates. Section 45a-353(e) defines a creditor as "any person having a claim." In turn, § 45a-353(d) defines claim as "all claims against a decedent (1) existing at the time of the decedent’s death or (2) arising after the decedent’s death, including, but not limited to, claims which are mature, unmatured, liquidated, unliquidated, contingent, founded in tort, or in the nature of exoneration, specific performance or replevin."
A creditor has 150 days from the date of appointment of the fiduciary to present a claim; see General Statutes § 45a-356; and all claims must be presented in writing. See General Statutes § 45a-358. General Statutes § 45a-367 sets forth the particular process for payment of claims of fiduciaries, and provides in relevant part: "A fiduciary shall not pay any personal claim of his own until such claim has been approved by the Court of Probate after newspaper notice and hearing, unless the court, for cause shown, waives such notice and hearing. If any such claim is wholly or partly secured, it may be paid out of such security at any time after such approval. The unsecured portion of any such claim and any unsecured claim shall not be paid until after such approval and until after the expiration of the one-hundred-fifty-day period provided for in subsection (a) of section 45a-356."
In the present case, Andrews did not present any written bills, invoices, or claims that would support a finding that she was a creditor of the decedent’s estate. At the trial de novo, Andrews testified that she had told the Probate Court that she was not looking for money from the decedent’s estate, and Michael Charm also testified that, during the Probate Court proceedings, Andrews testified that she was not interested in money. Further, at the trial de novo, Henrici testified that Andrews had not filed a list of claims, and that he did not know of any creditors of the decedent. Andrews also testified that she has not filed any written claims and did not calculate or put down on paper how much she was owed.
On the basis of the evidence and testimony presented, the court found that Andrews was a friend of the decedent’s and was trying to help him manage his affairs. She was not looking for money from the decedent’s estate, and did not file written claims indicating that she was entitled to reimbursement from the estate. Accordingly, Andrews does not qualify as a creditor.
C
Disinterested Persons as Administrators
During the January 10, 2018 trial de novo, after the court found that Andrews was not a creditor of the decedent’s estate, the plaintiffs moved to dismiss the case on the ground that Andrews is without standing to apply to be an administrator because she has no interest in the estate. Further, the plaintiffs argue that because Andrews is neither a creditor nor an heir, she cannot object to Rowe’s appointment as administrator. The first issue is whether Andrews’ status as a creditor is determinative of her ability to file an application for administration of the decedent’s estate.
1
Whether Disinterested Persons Have Standing to Apply for Administration
General Statutes § 45a-303(c)(1) sets forth a hierarchical list of persons who may be appointed administrator of an intestate decedent’s estate. These preferred, enumerated persons are the decedent’s surviving spouse, child (or the child’s guardian), grandchild (or the grandchild’s guardian), parents, brother or sister, or next of kin. See General Statutes § § 45a-303(c)(1)(A) through (F). The court is required to grant administration to any one or more of the preferred persons or their designees, "provided such person or persons are entitled to share in the estate of the decedent." General Statutes § 45a-303(c)(1). Only upon a next of kin’s "refusal, incapacity or failure to give bond or upon the objection of any heir or creditor to such appointment found reasonable by the court" may the court grant letters of administration "to any other person whom the court deems proper." General Statutes § 45a-303(c)(1)(F).
There is little case law in Connecticut that discusses the issue of standing for the purposes of applying for administration. Although the plaintiffs reference Davis v. Hunter, 323 F.Supp. 976, 978 (D.Conn. 1970), in support of their argument that Andrews lacks standing to apply for administration, the Davis court simply concluded that, because the plaintiffs were the next of kin of the decedent, they had standing to apply to the probate court for the appointment of an administrator. The case does not otherwise limit or define who may apply to be administrator. Other states appear to take a much stronger position, holding that "a person having no interest in the estate generally has no standing to apply for its administration. Nevertheless, a grant of administration made on the application of such a person may be valid if interested parties have consented to it, or it has not been reversed on appeal." (Footnotes omitted.) 33 C.J.S. 772, Executors and Administrators § 65 (2009).
The Connecticut Estates Practice Series on Settlement of Estates in Connecticut provides that an applicant for administration "should be someone having a legal interest in the estate (as executor, legatee, devisee, next-of-kin or creditor or, in some cases, the Tax Commissioner)." G. Wilhelm et al., Connecticut Estates Practice Series: Settlement of Estates in Connecticut (3d Ed. 2010) § 2:76. "It is not possible ... to discover from the statute, except by inference, who may properly apply for administration. Consequently, it must be supposed that anyone entitled to notice (i.e., anyone ‘interested in such estate’) may apply, and in practice the application for administration ordinarily is made by a named executor or by an heir-at-law." Id., § 2:77. The Practice Series does not state that only persons with an interest may apply. Moreover, the Probate Court form for applying to be administrator does not appear to require the applicant to disclose his or her interest in the estate, and provides in relevant part: "Any person may use this form to petition the court for administration or probate of a will and the appointment of an administrator or executor." (Emphasis added.) Pls.’ Ex. 2, Form PC-200 Petition/Administration or Probate of Will. Thus, although an interested applicant is certainly statutorily preferred to a disinterested applicant, it is not clear that a legal interest is required in order for a potential administrator to have standing to file an application.
Finally, although lack of standing is a proper ground for a motion to dismiss; Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413, 35 A.3d 188 (2012); it is not clear that the court is required to dismiss the present case for lack of subject matter jurisdiction. In Battle v. Kahn, 30 Conn.Supp. 407, 407, 318 A.2d 647 (1973), the defendant was appointed administrator of the plaintiff’s son’s estate. The plaintiff appealed from the Probate Court’s order, arguing that he had not received notice of a hearing in the Probate Court of the proposed appointment. Id. The Superior Court overruled the defendant’s demurrer, and held that the plaintiff had standing to bring the appeal on the ground that "the legally protected right or status of the plaintiff is spelled out by § 45-195 [now § 45a-303] of the General Statutes, which in pertinent part provides that the Probate Court shall grant administration of the estate ... to the next of kin ... or, on their refusal [or] incapacity ... or upon the objection of any heir ... found reasonable by such court, to any other person whom the court deems proper." (Internal quotation marks omitted.) Id., 408. The court then held that, because the defendant administrator "is not a next of kin of the decedent and since none of the conditions subsequent to the appointment of such next of kin has occurred, the plaintiff’s right to be appointed to the status of an administrator has been violated ..." Id.
Notwithstanding the court’s conclusion that the defendant was not the next of kin and that no condition subsequent to the appointment of such next of kin had occurred, the court did not find that the defendant lacked standing or that the Superior Court lacked subject matter jurisdiction to hear the merits of the plaintiff’s appeal. Had the court thought that subject matter jurisdiction was lacking, a sua sponte finding to that effect would have been proper. See New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 511, 518, 970 A.2d 583 (2009) ("the question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time" [internal quotation marks omitted] ).
In the present case, and as will be discussed, the plaintiffs make an argument very similar to the plaintiff’s argument in Battle v. Kahn, namely, that Michael Charm’s statutory right to designate Rowe to be administrator has been violated, and that no statutory condition has occurred that would allow the court to appoint a disinterested person. Notwithstanding this court’s finding that Andrews is not a creditor, there is no clear authority stating that Andrews lacked standing to file an application for administration of the decedent’s estate, or that the court’s finding warrants dismissal of the case for lack of subject matter jurisdiction. This conclusion is reaffirmed by the fact that, in certain circumstances, the court does have discretion to appoint disinterested persons to be administrators. This issue is addressed in turn.
2
When the Court May Appoint a Disinterested Person
Section 45a-303 provides for a number of situations where the court may appoint a disinterested person, some of which would not be apparent to the court upon receiving applications for administration, but likely only after conducting a hearing as required in § 45a-303(b). These situations are set out in § 45a-303(c)(1)(F), which provides that, upon a next of kin’s "refusal, incapacity or failure to give bond or upon the objection of any heir or creditor to such appointment found reasonable by the court," the court may grant letters of administration "to any other person whom the court deems proper."
It also appears that the court is required to appoint a disinterested person when he or she is the designee of one of the preferred, enumerated persons. See § 45a-303(c)(1) and part IIID of this decision.
In Eva v. Gough, 93 Conn. 38, 43, 104 A. 238 (1918), the Connecticut Supreme Court held that the appointment of a disinterested person was proper when there was a dispute between heirs at law and next of kin regarding the administration of the decedent’s estate. The version of the statute in place at the time, "§ 318 of the General Statutes (Rev. 1918, § 4972) ... provide[d] that ‘when any person shall die intestate, the Court of Probate ... shall grant administration of the estate to the husband or wife or next of kin, or to both, or, on their refusal or incapacity, or failure to give bond, or upon the objection of any heir or creditor to such appointment, found reasonable by said court, to any other person whom the court deems proper.’ " Eva v. Gough, supra, 42. Annie E. Gough objected to the appointment of Richard Eva as the administrator of the decedent’s estate. Id. Gough sought to have a disinterested person, John Addis, be appointed administrator of the decedent’s estate, and the Probate Court confirmed his appointment. Id. Richard Eva appealed, claiming the right to administer the decedent’s estate on the ground that he was an heir at law and next of kin. Id. The court noted that "the court below has found it is for the best interest of the estate that a disinterested person should be appointed, and has also confirmed the appointment of Mr. Addis, which was made by the Court of Probate; so that the only question for us to decide is whether or not the action of the Superior Court was a reasonable exercise of the discretion resting in it. The facts disclosed by the record fall far short of showing that it was the duty of the Court of Probate to appoint the plaintiff Richard Eva as administrator. He, and all those whom he represents, were entire strangers to the situation that existed in Bridgewater when [the decedent] died. They knew but little of him and nothing of his affairs at that time. Richard Eva’s only qualification for his appointment was the fact that he is an heir at law and next of kin of [the decedent]." Id., 42-43. Implied in the court’s analysis is that familiarity with the decedent and his affairs was more important than mere relation to the decedent or interest in the estate. Of note, the court concluded that Addis was an appropriate administrator before determining whether Gough was truly an heir at law or next of kin of the decedent. Ultimately, the court found that she was a rightful heir; see id., 48; and, accordingly, had standing to object to Richard Eva’s appointment. Id., 44.
Although the hierarchical list of preferred persons was added to § 45a-303 in the 1982 amendments, years after the court’s decision in Eva v. Gough, the statute’s legislative history reinforces the conclusion that a court may appoint a disinterested person when there is a dispute between heirs. See 25 H.R. Proc., Pt. 1, 1982 Sess., pp. 141-45, remarks of Representatives R.E. Van Norstrand and Richard Tulisano. Representative Van Norstrand questioned, "if you follow the priority laundry list of relatives, which is largely that in the list of intestate statutes generally, can you not concede that if you had to follow this mandate, you could get yourself into a conflict of interest situation?" Id., p. 141. He then provided an example of one heir having a greater interest in the estate than another, and proffered that "any judge with an ounce of common sense would probably appoint a disinterested party." Id., 142. The following exchange then occurred:
REP. TULISANO: (29th)
If in fact there seems to be some dispute or potential conflict ... the existing language of the law, I think clearly indicates that if there’s an objection by an heir, if that does exist, the court has the authority to appoint a disinterested party.
REP. VAN NORSTRAND: (141st)
In short, through you, Mr. Speaker, to ignore the priority list.
REP. TULISANO: (29th)
Through you, Mr. Speaker, for good cause shown.Id., 143.
Finally, case law in other states appear to similarly hold that, although an interested person is often statutorily preferred to a disinterested person, courts have discretion to appoint a disinterested person when certain conditions and circumstances are met. "The policy of the law is to commit the administration of a decedent’s estate to those having a beneficial interest therein. Persons interested are as a general rule preferred, and statutes conferring priority of right to administration on certain classes have for their purpose the effectuation of such policy. Ordinarily, one not entitled to share in the estate is not entitled to letters of administration, and interested parties are the only ones who can demand an administration of the estate. On the other hand, if it is necessary or provident to appoint an administrator, the fact that the person selected is not directly interested in the estate will not per se disqualify him or her. The court may exercise discretion in the matter, and under special circumstances it may be both proper and advisable for the court to appoint one because he or she is disinterested and therefore impartial." (Emphasis added; footnotes omitted.) 33 C.J.S. 743-44, Executors and Administrators § 41 (2009).
The language in section 45a-303 and the applicable case law do not unequivocally limit the class of persons who are able to file an application for administration of a decedent’s estate. To the extent that the court has some discretion, under certain circumstances, to appoint a disinterested person to be administrator of a decedent’s estate, such disinterested person should be able to file an application for administration with the Probate Court. Moreover, even if the statute implicitly limits the class of persons who are able to file an application, in the present case, it was Andrews’ position that she was a creditor of the decedent’s estate and could, therefore, apply to be administrator. It was not determined until the trial de novo that Andrews was not a creditor and had no interest in the decedent’s estate. Because there is no explicit authority stating that this finding deprives the court of subject matter jurisdiction, the court will proceed with the substantive issues raised at trial rather than dismiss the case. These issues include whether Michael Charm had a statutory right to designate Rowe to be administrator of the decedent’s estate, whether the court is statutorily mandated to appoint Rowe to be administrator, and whether Andrews has standing to object to such appointment.
D
Whether Michael Charm Designated Rowe to be Administrator
At the outset, there is no question that Michael Charm has standing to bring this appeal, as he is "statutorily aggrieved. As the decedent’s issue, the plaintiff is an heir for the purposes of intestacy ... Pursuant to § 45a-303(c), an heir of the decedent can object to the appointment of an administrator or administratrix of the decedent’s intestate estate. Therefore, the plaintiff in this case, as an heir, has a statutory right to object to the appointment of the named defendant as administratrix. In order to protect that right, the plaintiff must have the right to appeal from the probate order appointing the defendant. A contrary conclusion would result in the finding of virtually unfettered and unreviewable discretion of the Probate Court in making of such decisions ... Thus, because the legislature created a right to object, the plaintiff has standing to appeal." (Citations omitted; internal quotation marks omitted.) Kucej v. Kucej, 34 Conn.App. 579, 582-83, 642 A.2d 81 (1994), overruled in part on other grounds by Heussner v. Hayes, 289 Conn. 795, 807, 961 A.2d 365 (2008) ("to the extent that ... Kucej hold[s] that probate appeals are subject to the requirements of mesne process, that conclusion is hereby overruled"); see also Battle v. Kahn, supra . 30 Conn.Supp. 408 ("[the plaintiff’s] legally protected right to be considered for such an appointment has been ignored, thus making him an aggrieved party in the eyes of the law").
The material difference in the present case, however, is that Michael Charm did not want to be administrator of the decedent’s estate, but rather, wished for his mother to be appointed. "Under some statutes, the persons primarily entitled to administration have the right to nominate a person to serve in their stead who, if suitable for the office, should be appointed by the court. Under statutes of this character, it has been found that the right of nomination by those on whom the statute confers it is absolute and that appointment of the nominee, if qualified, becomes mandatory on the court." 33 C.J.S. 757, Executors and Administrators § 52 (2009).
The language of section 45a-303 mandates the appointment of an enumerated person’s designee, stating that the court of probate "shall grant administration ... to any one or more persons or their designees ..." (Emphasis added.) General Statutes § 45a-303(c)(1). Section 45a-303 first included the option for appointment of a designee in the 1982 amendments. Although Eva v. Gough predates the current version of the statute, Gough was plainly able to designate a disinterested person to be the administrator of the decedent’s estate, and the court granted administration to the disinterested party. Eva v. Gough, supra, 93 Conn. 43. The Supreme Court held that "[t]he fact that Mrs. Gough has made application for the appointment of Mr. Addis should not militate against his suitability. It appears that Mrs. Gough is an heir at law and next of kin and has a large interest in the estate of [the decedent]." Id. A similar argument can be made in the present case, namely, that Michael Charm, as an heir at law with an interest in the decedent’s estate, should be able to designate a disinterested person to be administrator.
The issue remains whether Michael Charm properly designated his mother to be administrator of his father’s estate. There is little case law regarding appointing a designee or the steps that must be taken to appoint such designee. The legislative history is likewise unavailing. That said, the evidence and testimony introduced at the trial de novo provide some insight regarding the necessary Probate Court procedures for appointing a designee. The plaintiffs submitted the Probate Court records, which state the following. On July 17, 2017, Michael Charm submitted a request for formal hearing regarding the estate of his father. "Case Notes for Richard Charm," dated July 18, 2017, indicate that a "[h]earing [was] requested by decedent’s son who is incarcerated. He will participate by telephone. He would like his mother, the decedent’s ex-wife to be appointed. She is willing to participate via telephone conference as she is out of state ... The prison ACO, Andrea Aho, has requested a letter documenting the conversation had with her and the inmate and confirming that the inmate needs to call the court." The Probate Court record contains a copy of this letter, also dated July 18, 2017, which is drafted on letterhead from the Court of Probate, District of Hamden-Bethany. The Probate Court letter states: "[T]he following is the protocol that needs to be followed in order for Mr. Charm to participate in the hearing he has requested regarding his father’s estate: An inmate may request and participate in a hearing by calling the Hamden/Bethany Probate Court ... at the time of the scheduled hearing ... As discussed with you and inmate Michael Charm, if it is Mr. Charm’s intention for his mother, Donna Rowe, to be considered as Administratrix of the Estate of Richard Charm, Ms. Rowe must petition the Court to request to be considered, and be prepared to participate in the hearing." (Emphasis added.) The Probate Court records contain Rowe’s petition for administration, which is dated July 25, 2017. Further, notes from the Probate Court hearing indicate that both Michael Charm and Rowe participated at the hearing. Finally, at the January 10, 2018 trial de novo, Michael Charm testified that he had reviewed his options in this case as to who he would like to be administrator of his father’s estate, and selected Rowe to be administrator because she is competent and trustworthy. The plaintiffs followed the instructions provided by the Probate Court to appoint a designee, and Michael Charm properly designated Rowe to be administrator of the decedent’s estate. Although Rowe is the ex-wife of the decedent and lives out of state, she is the mother of Michael Charm, who is the rightful heir to his decedent father’s estate, and, who designated Rowe to be administrator of the decedent’s estate. Rowe is the grandmother of Michael Charm’s two children who live in Connecticut, and who are now heirs to Michael Charm’s estate. Moreover, on the evidence presented, the court cannot conclude that Rowe is not suitable to be administrator of the decedent’s estate.
E
Whether Andrews has Standing to Object to Rowe’s Appointment
Section 45a-303(c)(1)(F) is clear that only an heir or a creditor may object to the appointment of a decedent’s heir, at which time the court may appoint a disinterested person. In Eva v. Gough, supra, 93 Conn. 44, Gough had standing to object to the appointment of Richard Eva because she was an heir at law and next of kin. In the present case, Andrews is neither an heir nor a creditor. Accordingly, she is without standing to object to the appointment of Rowe as administrator.
CONCLUSION
"Since the rights of particular persons to administer on the estates of decedents are entirely regulated by statute, letters must be granted in the order and under the rules thereby prescribed." (Footnotes omitted.) 33 C.J.S. 742, Executors and Administrators § 40 (2009). Statutes that prioritize the order of persons who may administer a decedent’s estate effectuate the policy of granting letters of administration to those persons having an interest in the estate. See id., 743-44. General Statutes § 45a-303 is one such statute, and sets forth a hierarchical, preferred list of persons who can be administrator of a decedent’s estate. Further, § 45a-303 states that such persons may nominate a designee to be administrator. In the present case, the court "must construe [the] statute as it finds it, without reference to whether it thinks the statute would have been or could be improved by the inclusion of other provisions." Battersby v. Battersby, 218 Conn. 467, 471, 590 A.2d 427 (1991). The court is, therefore, required to follow the plain language of the statute, which states that the decedent’s son may designate who he wishes to be administrator of the decedent’s estate.
Although the court is required to follow the statute as written, the court is mindful of, and acknowledges the time and care that Andrews has put into taking care of the decedent and his estate. Andrews and the decedent were friends. Andrews regularly spoke to and spent time with the decedent. Moreover, the decedent authorized Andrews to speak with his doctors and act as his health care proxy during his time of illness. Andrews has taken seriously her responsibilities as both a friend and a fiduciary. Andrews is not, however, an heir or a creditor, and the statute thus requires the court to appoint Michael Charm’s designee to be administrator of his father’s estate. Because Michael Charm has designated Rowe to be administrator, the court is statutorily required to appoint Rowe to be administrator of the decedent’s estate. Accordingly, the plaintiffs’ appeal is sustained and the probate order appointing Andrews administrator of Richard Charm’s estate is vacated. Donna Rowe as Michael Charm’s designee to be administrator of his father, Richard Charm’s estate is hereby appointed administrator of same. No costs or interest is awarded. It is so ordered.