Asselin Connolly v. Vaso Williams (2011)

MEMORANDUM OF DECISION RE MOTION FOR EXEMPTION FROM EXECUTION (NO 108)

The issue in this case is whether the plaintiff can properly issue a property execution on the defendant's interest in her mother's estate, which is currently open and pending in probate court.   The defendant claims that her interest in the estate is exempt from execution.   Based on the statutory definition of “property” and relevant case law on this topic, the court is persuaded that the plaintiff may do so.

General Statutes § 52–350a provides definitions of terms for postjudgment procedures, including property executions.   Section (16) defines “property” as “any real or personal property in which the judgment debtor has an interest which he could assign or transfer, including (A) any present or future right or interest, whether or not vested or liquidated, (B) any debt, whether due or to become due, and (C) any cause of action which could be assigned or transferred.

“Although § 52–350a(16) defines ‘property’ broadly to encompass ‘any real or personal property in which the judgment debtor has an interest which he could assign or transfer, including any present or future right or interest, whether or not vested or liquidated [and] any debt, whether due or to become due,’ it does not specify what constitutes an ‘interest,’ ‘right,’ or ‘debt.’   While it is reasonable to infer from this language the legislature's intent to allow a judgment creditor to execute against all forms of a judgment debtor's assets, it would be unreasonable to infer an intent to encompass property in which a judgment debtor lacks any cognizable interest whatsoever.”  Fleet Bank Connecticut, N.A. v. Carillo, 240 Conn. 343, 349, 691 A.2d 1068 (1997).

The court in State v. Conti, Superior Court, judicial district of Hartford, Docket No CV 92 519328 (October 19, 1994, Langenbach, J.) appeared to approve of a judgment creditor issuing a property execution on someone's interest in a decedent's estate that was still pending in the probate court by serving the execution on the probate judge:

Concurrent with its action against [the debtor], the [creditor] commenced the present action against the estate of [the debtor's] father, Pasqual Conti [Estate].   Through the present action, the [creditor] challenged [the debtor's] purported disclaimer of his 1/4 interest in the Estate;  these assets represent [the debtor's] only non-exempt personal property.   The [creditor] sought to reach these assets in order to satisfy the judgment rendered against [the debtor] in Connecticut Administrative Services v. Joseph Conti.

On February 1, 1994, in the present action, the court, Freed, J., ruled upon the [creditor's] motion for summary judgment, that [the debtor's] interest in the Estate was not a future interest, but rather one that vested at the death of his father.   The court held that because [the debtor] had effectuated his disclaimer after the death of his father, the disclaimer was untimely, and thus, void and without effect.   Following the decision of Judge Freed, pursuant to General Statutes § 52–356a, the [creditor] filed an application for property execution against [the debtor's] 1/4 share in the Estate.   On March 31, 1994, pursuant to General Statutes § 52–60(d), the sheriff served the execution on the probate judge for the Court of Probate for the District of Old Saybrook, where the probate of the $232,750.63 Estate is currently pending.

The court also rejected the debtor's claim that the judgment creditor was premature in levying upon his share of the estate because that share was not yet in being.  “The right of inheritance or succession becomes fixed and determined at the moment of the death of the owner, and although distribution occurs a considerable time thereafter, it relates back to the date of the death as the time when the right of the beneficiary became fixed.”  (Citations omitted, internal quotation marks omitted).  Newell v. McLaughlin, 126 Conn. 138, 143–44, 9 A.2d 815 (1939);  see also State v. Murtha, 179 Conn. 463, 468, 427 A.2d 807 (1980).

In addition, according to the Supreme Court in F & W Welding Service, Inc. v. ADL Contracting Corp., 217 Conn. 507, 515–16, 587 A.2d 92 (1991).

A debt is owing and thus available for garnishment if the garnishee has an existing obligation to pay the debtor either in the present or the future.   An obligation to pay the debtor in the future is “existing” if the garnishee's liability to pay the obligation is certain.   If an obligation is certain as to liability, it is not rendered uncertain merely because the debt is unliquidated, that is, the amount that the garnishee ultimately will be obligated to pay is uncertain.   Furthermore, the garnishee's otherwise certain liability is not made uncertain because the obligation may be diminished or defeated by a condition subsequent.

Therefore, the court in State v. Conti held that “[w]hile [the judgment debtor's] 1/4 share of his father's estate has not yet been liquidated, the Estate has an existing and certain obligation to pay [the debtor's] 1/4 share in his father's estate to the [judgment creditor] and, accordingly, the [judgment creditor] may properly levy upon those assets.”

Further, General Statutes § 52–390 provides for execution upon a legacy or distributive an estate and the time for taking such action.

For these reasons, the defendant's claim of exemption from execution is denied.

Cosgrove, J.

Cosgrove, Emmet L., J.