Opinion
No. CV07-4014713S
February 4, 2008
MEMORANDUM OF DECISION
This is a matter brought by the plaintiff, Joseph A. Zipoli, who is a son of the decedent, Thomas A. Zipoli, who died on July 1, 2006 and whose estate is being administered in the Probate Court for the Town of Woodbury. Under the terms of the will, the defendant, Frances Gidez, is Executrix of the estate by admission of the will on December 11, 2006. This matter has appeared on the short calendar involving dual motions to strike the declaratory judgment action brought by the plaintiff concerning the interpretation of certain provisions within a trust created in April of 1993 by the decedent and the terms of his will dated March 15, 2006 that has been admitted to said Probate from which no Probate appeal was taken.
The jurisdiction of the Probate Court to determine issues involving title, possession and use of real estate is recognized in C.G.S. 45a-98 et seq. Although the Superior Court has concurrent jurisdiction with the Probate Court and acts as a Probate Court de novo for any Probate appeals, this Court is reluctant to preempt the said Probate Court in this pending matter in the spirit of comity and concurrence. The earliest cases seem to indicate that abstention is the best policy when it comes to preempting anything that the said Probate Court may be doing that has not been brought as an appeal from that court.
Crosby v. Mason, 32 Conn. 482, 484 (1865); Conn. Bank Trust Co. v. Cohen, 27 Conn.Sup. 138, 140 (1967).
"That the sole remedy of a party claiming against, or interested in the settlement of, the estate of a deceased person, under every difficulty and embarrassment, is in the court of probate; a tribunal that possesses powers and transacts business in a manner eminently fitted to a successful investigation of such matters." Beach v. Norton, 9 Conn. 1982, 190 (1832).
A prior pending action even in Probate Court needs to be respected and deferred to in a reasonable and timely manner. "Ordinarily, a declaratory judgment action will not be entertained if there is another action pending between the same parties in which the same issues are involved and may be adjudicated. In the absence of allegations showing exceptional circumstances justifying the declaratory judgment action, the complaint in that action is demurrable. Redmond v. Matthies, 149 Conn. 423, 427, 180 A.2d 639. It is manifestly unwise and unnecessary to permit a new action for a declaratory judgment when the same question can be determined in the pending action. Borchard, Declaratory Judgments (2d Ed. p. 350); Buchman v. Taylor, 151 Conn. 209, 211 (1963).
Our declaratory judgment law (Connecticut General Statutes § 52-29) is to be liberally construed and is statutory, not equitable in nature. Calve Bros. Co. v. Mass. Bonding and Ins. Co., 22 Conn.Sup. 44, 46 (1959); Practice Book Sect. 17-54 et seq.
"[w]here the subject matter of the declaratory judgment which is sought is already in issue in a case instituted prior to the institution of the declaratory judgment action. The instant action seeks to enjoin the further prosecution of a previously instituted pending action until issues therein are culled out and determined here — issues which could, and if properly raised would, be determined in the pending action." Redmond v. Matthies, 149 Conn. 423, 427 (1962).
The scope of the plaintiff's declaratory judgment could have significant impact on the actual disposition and resolution of the pending Probate issues in this estate. Since the res of the estate consists essentially of a parcel of real estate, resolution of the conflicting language between the subject will and the trust documents would be dispositive of the entire estate. The defendants' reliance on the case of Palozia v. Palozia, 283 Conn. 538 (2007), is misplaced although it has some instructive elements to it. Connecticut law appears to be somewhat unsettled as seen in the Restatement of the Law-Trust Restatement (Second) of Trusts, Sect. 282 involving actions brought by beneficiaries which gives some guidance, but it is hardly conclusive as to the applicable Connecticut law in this matter.
Therefore, in light of the conflicting legal authorities and the particular probate status of this estate, the Court neither grants nor denies the respective defendants' motions to strike at this point, but defers any further decision for a period of three (3) months pending the Woodbury Probate Court's proceedings and decision concerning its interpretation and application of the relevant law to the subject documents. Any probate appeals generated during this period may be consolidated with this action.
The defendants' motions to strike may be reclaimed to the short calendar for April 21st for decision. All other proceedings in this Superior Court file are stayed until that date without prejudice to any parties.