Estate of Kenneth James Stuart, Sr. et al. v. Appeal from Probate for the District of Norwalk/Wilton et al. (2012)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT DATED SEPTEMBER 2, 2011 (# 105.00)

This Motion for Summary Judgment tests two of the four elements of the doctrine of res judicata;  that the previous litigation be in “a court of competent jurisdiction” and whether the plaintiffs had an adequate opportunity to litigate the issue fully in that previous litigation.

On June 14, 2011 the Probate Court for the District of Norwalk/Wilton issued an order denying the plaintiff's November 23, 2009 Motion to Disinherit Kenneth J. Stuart, Jr., filed in and heard by said Probate Court.   The plaintiffs, William A. Stuart and Jonathan Stuart, bring this appeal from that order of the Probate Court pursuant to Gen.Stat. § 45a–186.   The first pleading filed in this case by the defendant Kenneth J. Stuart, Jr., was his September 2, 2011 Motion for Summary Judgment (# 105.00) based on res judicata.  “The plaintiffs' de novo appeal from the Probate Court alleges a new remedy arising out of exactly the same set of facts as their prior Superior Court case versus Kenneth Stuart.” (# 107.00, page 7.)

The operative complaint is the Amended Complaint Probate Appeal dated October 24, 2011 (# 111.00) in Three Counts:  Count One is directed to the June 14, 2011 denial of the Motion to Disinherit Kenneth J. Stuart, Jr. The defendants filed an Amended Motion for Summary Judgment Addendum to Amended Complaint dated October 26, 2011 (# 112.00) addressed to only Count One of the Amended Complaint.   This Memorandum of Decision is addressed to both the original Motion for Summary Judgment (# 105.00) and the Amended Motion for Summary Judgment Addressed to Amended Complaint (# 112.00).

In general res judicata must be specially pleaded.  Zizka v. Water Pollution Control Authority, 195 Conn 682, 687 (1985).   The general rule may yield in certain circumstances.  Tucker v. Pace Investments Associates, 32 Conn.App. 384, 391 (1993).   Since no party raised this procedural issue, the court will address res judicata without the need for the pleading by special defense.   State of Connecticut v. Carter, Superior Court, judicial district of Hartford, Docket Number CR 01–553550 (August 30, 2011, Gold, J.) [52 Conn. L. Rptr. 494];  Joe's Pizza, Inc. v. Aetna Life and Casualty Company, 236 Conn. 863, 867, fn. 8 (1996).

William A. Stuart and Jonathan Stuart successfully litigated in the Superior Court a nine-count lawsuit against their brother, Kenneth J. Stuart, Jr., claiming undue influence, lack of mental capacity, breach of fiduciary duty, statutory theft, unjust enrichment, fraudulent conveyance and constructive trust.   They claimed by way of relief the imposition of a constructive trust on certain partnership assets, the setting aside of a real property transfer, money damages, accounting fees, attorney fees and treble damages.  “The plaintiffs claimed at trial that (Kenneth) Stuart, Jr., used his fiduciary position to misappropriate millions of dollars through numerous illegal transactions for his direct and indirect benefit the result of which deprived the plaintiffs of their inheritance from their father.” # 107.00, page 9. Kenneth J. Stuart, Jr. was named as a defendant in the Superior Court lawsuit in four different capacities:  individually, as trustee of a trust established by their father, Kenneth James Stuart, Jr., as executor of their father's estate and as a general partner of Stuart & Sons, LP, a partnership formed four months before their father's 1993 death.   The lawsuit was returned to the Superior Court, judicial district of Fairfield at Bridgeport on January 18, 1994.   It was transferred to the Complex Civil Litigation Docket in the Superior Court, judicial district of Stamford/Norwalk at Stamford on November 1, 2002.   The litigation involved thousands of transactions.   The trial took 25 days.   On June 28, 2004 these two brothers obtained a judgment in the amount of $2,375,528.38 payable to the estate of their father, Kenneth James Stuart, Sr. ($1,062,332.25 for breach of fiduciary duty, $496,452.50 treble damages for statutory theft, $636,743.63 prejudgment interest and $180,000 for accounting fees).   Other orders were entered in addition to these monetary damages.   Stuart v. Stuart, Superior Court, judicial district of Stamford/Norwalk at Stamford, Complex Civil Litigation, Docket Number X08–CV02–0193031 (June 28, 2004, Adams, J.) [37 Conn. L. Rptr. 367].   The three beneficiaries of the Estate of Kenneth James Stuart, Sr. were the three brothers, Jonathan Stuart, William A. Stuart, and Kenneth J. Stuart, Jr. They are the only children and heirs of Kenneth James Stuart, Sr. Each received one-third of their father's estate.   Kenneth James Stuart, Sr. died on February 27, 1993 a resident of Wilton, Connecticut.   His estate is being probated in the Probate Court District of Norwalk/Wilton.   The Motion for Summary Judgment claims that the motion for the disinheritance of Kenneth J. Stuart, Jr. from his one-third interest in the Estate of Kenneth James Stuart, Sr. should have been brought in the previous Superior Court action and thus summary judgment should be granted on the basis of res judicata.

The doctrine of res judicata provides that a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action between the same parties on the same claim ․ To determine whether two claims are same for purposes of res judicata, we compare the pleadings and judgment in the first action with the complaint in the subsequent action ․ The judicial doctrine of res judicata is based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate.   (Internal quotation marks omitted.)  Fernandez v. Commission of Corrections, 86 Conn.App. 42, 44–45, 859 A.2d 948 (2004).   This court has previously distilled the following essential elements of res judicata from our case laws;  (1) the initial judgment was rendered on the merits by a court of competent jurisdiction, (2) the identities of the parties to the actions are the same, (3) the parties had an adequate opportunity to litigate the matter fully and (4) the same claim, demand or cause of action is at issue.   See Tirozzi v. Shelby Insurance Company, 50 Conn.App. 680, 686–87, 719 A.2d 62, cert. denied, 247 Conn. 945, 723 A.2d 323 (1998).

Barton v. Norwalk, 131 Conn.App. 719, 726–27 (2011).

[U]nder the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim ․ [or any claim based on the same operative facts that] might have been made ․ A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose ․ The rule of claim preclusion prevents reassertion of the same claim regardless of what, additional or different evidence or legal theories might be advanced in support of it ․ [T]he appropriate inquiry with respect to [claim] preclusion is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding ․ (Citations omitted;  emphasis added;  internal quotation marks omitted.)  State v. Osuch, 124 Conn.App. 572, 581, 5 A.3d 976, cert.   Denied, 299 Conn. 918, 10 A.3d 1052 (2012).

Davis v. Commission of Correction, 133 Conn.App. 458, 470 (2012).

The companion legal theory of collateral estoppel was not raised in this Motion for Summary Judgment.   In any event, collateral estoppel does not apply since the disinheritance claim was not actually litigated in the prior Superior Court lawsuit.  “The doctrine of collateral estoppel prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties or those in privity with them upon a different claim ․ An issue is actually litigated if it is property raised in the pleadings or otherwise submitted for determination, and in fact determined.”  Efthimiou v. Smith, 268 Conn. 499, 506–07 (2004).

Res judicata is a flexible doctrine based on equitable considerations.   Davis v. Department of Correction, supra, 133 Conn.App. 460, fn 1.

Finally, we recognize that a decision whether to apply the doctrine of res judicata to claims that have not actually been litigated should be made based upon a consideration of the doctrine's underlying policies, namely, the interests of the defendant and of the courts in bringing litigation to a close;  1 Restatement (Second), supra, § 24, p. 199;  and the competing interest of the plaintiff in the vindication of a just claim.   We have stated that res judicata “should be applied as necessary to promote its underlying purposes.   These purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation;  (2) to prevent inconsistent judgments which undermine the integrity of the judicial system;  and (3) to provide repose by preventing a person from being harassed by vexatious litigation ․ The judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate ․ Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest.   The doctrines of preclusion, however, should be flexible and must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies ․ We review the doctrine of res judicata to emphasize that its purposes must inform the decision to foreclose future litigation.   The conservation of judicial resources is of paramount importance as our trial dockets are deluged with new cases daily.   We further emphasize that where a party has fully and fairly litigated his claims, he may be barred from future actions on matters not raised in the prior proceeding.   But the scope of matters precluded necessarily depends on what has occurred in the former adjudication.  (Citations omitted;  internal quotation marks omitted.)   State v. Ellis, supra, 197 Conn. 465–67.

Delahunty v. Massachusetts Mutual Life Insurance, Co., 236 Conn. 582, 591–92 (1996).

The standards for ruling on motions for summary judgment are both well established and familiar, yet they bear repeating and articulating in each instance where such relief is sought, lest an inference be drawn that such standards were not adhered to in a given case, or a suspicion arises that a different standard of review was followed.  “Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  Mazurek v. Great American Ins. Co., 284 Conn. 16, 26 (2007).

“In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500 (1988).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.”  Zielinski v. Kotsoris, 279 Conn. 312, 318 (2006).

“The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  Id., 318–19.

“A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like.”   Practice Book § 17–45.  “[Section 17–46] sets forth three requirements necessary to permit the consideration of material contained in affidavits submitted in a summary judgment proceeding.   The material must:  (1) be based on personal knowledge;  (2) constitute facts that would be admissible at trial;  and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit.”  Barrett v. Danbury Hospital, 232 Conn. 242, 251 (1995).

“Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  Allstate Ins. Co. v. Barron, 269 Conn. 394, 406 (2004).  “Such assertions are insufficient regardless of whether they are contained in a complaint or a brief.”  New Milford Savings Bank v. Roina, 38 Conn.App. 240, 245, cert. denied, 235 Conn. 915 (1995).  “Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact on a motion for summary judgment.”  Id., 245.   However, the court may consider not only the facts presented by the parties' affidavits and exhibits, but also the “inferences which could be reasonably and logically drawn from them.”  United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381 (1969).

It appears this Motion for Summary Judgment is placing the cart before the horse.   This court has not been able to locate nor have the litigants furnished the court with any Connecticut statutory or common-law authority for a civil suit to disinherit an heir at law.   The plaintiffs point to two cases from other jurisdictions that support their right to sue for disinheritance.  In Re Estate of O'Keefe, 583 N.W.2d 138 (S.D.Sup.CT 1998) and Wilson v. Wilson, 246 Ala. 120, 19 So.2d, 399 (1944).   This issue is not yet before the court.   Despite that fact, the defendant has filed this Motion for Summary Judgment claiming that:  “Any remedy, such as disinheritance, stemming from the defendant Kenneth J. Stuart, Jr.'s wrongdoing had to be brought in the prior Superior Court action.” (# 107.00, page 1.)

The underlying facts that supported the $2,375,528.38 monetary judgment in favor of the Estate of Kenneth James Stuart, Sr., against Kenneth J. Stuart, Jr. are contained in the Appellate Court decision.  Stuart v. Stuart, 112 Conn.App. 160, 165–69 (2009).   Kenneth J. Stuart, Jr. appealed from the June 28, 2004 judgment but later withdrew his appeal.   The two brothers cross-appealed and the trial court's decision was affirmed by the Appellate Court.   Stuart v. Stuart, supra, 112 Conn.App. 190.   The two brothers were able to obtain certification to the Supreme Court on one narrow issue to wit;  Is the preponderance of evidence standard applicable in a civil action for statutory theft?  Stuart v. Stuart, 290 Conn. 290 (2009) The Supreme Court remanded to the Superior Court.  Stuart v. Stuart, 297 Conn. 26, 54 (2010).  “The judgment of the Appellate Court is reversed with respect to the issue of the burden of proof applicable to statutory theft claims under § 52–564 and the case is remanded to that court with direction to reverse in part the judgment of the trial court and to remand the case for further proceedings according to law.”  Id., 54.   Not all issues have been resolved in the original 1994 trial court matter.   Counsel did not inform this court that any of these unresolved trial court issues would impact the issues raised in this Motion for Summary Judgment.   The Stuart family has been involved in seven separate lawsuits in the Superior Court.   This Probate Appeal is the latest of those seven lawsuits.   A number of these lawsuits are pending at the trial court level.   A number have concluded at the trial court level and have concluded at the appellate level.   At least two lawsuits have been reviewed by the Supreme Court.

“We have adopted a transactional test as a guide to determining whether an action involves the same claim as an earlier action so as to trigger the operation of the doctrine of res judicata.   The claim that is extinguished by the judgment in the first action includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.   What factual grouping constitutes a transaction, and what groupings constitutes a series, are to be determined pragmatically, giving weight to such considerations as to whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage ․ In applying the transactional test, we compare the complaint in the second action with the pleadings and the judgment in the earlier action.”  New England Estates, LLC v. Town of Branford, 294 Conn. 817, 843 (2010).   Thus the defendant herein, Kenneth J. Stuart, Jr., claims that the plaintiffs could have and should have asserted their claim for relief of disinheritance in the prior Superior Court action before Judge Adams, since the complaint in this lawsuit relies on the same facts as in the prior Superior Court action.

The two brothers did not raise the issue of disinheritance in their pleadings, claims for relief or the evidence in the trial before Judge Adams.   They did raise the issue on appeal.   The Appellate Court disposed of that disinheritance claim on the basis that it was not raised at trial.   The entire Appellate Court's decision on the disinheritance issue is contained in section VII as follows:

The plaintiff's next claim is that the court's failure to disinherit Stuart, Jr., from Stuart, Sr.'s estate violated public policy.   They argue that the award of damages to the estate of Stuart, Sr., permits Stuart, Jr., to profit from his wrongdoing by inheriting his one-third share.

We need not address the issue of whether this court has the authority to usurp the probate statutes by disinheriting a beneficiary under a validly executed will.   The plaintiffs never claimed this remedy in their prayer for relief and never presented the claim for disinheritance before the trial court.  “[A] party cannot present a case to the trial court on one theory and then seek appellate relief on a different one.”  (Internal quotation marks omitted.)  Ingels v. Saldana, supra, 103 Conn.App. 730.  “For this court to ․ consider [a] claim on the basis of a specific legal ground not raised during trial would amount to trial by ambuscade, unfair both to the [court] and to the opposing party.”  (Internal quotation marks omitted.)  Gilbert v. Beaver Dam Assn. of Stratford, Inc., 85 Conn.App. 663, 680, 858 A.2d 860 (2004), cert. denied, 272 Conn. 912, 866 A.2d 1283 (2005).

Stuart v. Stuart, supra, 112 Conn.App. 188.

The June 28, 2004 trial court decision does not mention any claim of disinheritance.   The only time “inherit” or any variation thereof is mentioned is in footnote 7.

The parties did brief the disinheritance issue before the Appellate Court.   In Kenneth J. Stuart, Jr.'s brief he notes the following testimony by Jonathan Stuart.  “I think our purpose is to settle things up.   To try and find out how much Ken had actually taken from the estate for his own personal use.   To somehow come up with a number and equalize that with whatever is left.   This was part of what we talked about.”   Even though the disinheritance issue was not raised in the trial court and thus could not be considered an appeal, that fact does not affect the application of the doctrine of res judicata.   The issue is whether the parties could have raised the disinheritance issue in the trial court.   If they could have and did not, res judicata would prevent the instant lawsuit.   Res judicata tests the opportunity to litigate, not the actual litigation.  Barton v. City of Norwalk, supra, 131 Conn. 727.

“Article fifth, § 1 of the Connecticut constitution proclaims that [t]he powers and jurisdiction of the courts shall be defined by law, and General Statutes § 51–164s provides that “[t]he Superior Court shall be the sole court of original jurisdiction for all causes of action, except such actions over which the courts of probate have original jurisdiction, as provided by statute ․ [T]he general rule of jurisdiction ․ is that nothing shall be intended to be out of the jurisdiction of a Superior Court but that which specially appears to be so;  and ․ nothing shall be intended to be within the jurisdiction of an inferior court but that which is expressly so alleged.”   Raftopol v. Ramey, 299 Conn. 681, 695 (2011).  “[W]e will not oust the Superior Court of jurisdiction by implication and we will not enlarge the jurisdiction of the Probate Court beyond that which is expressly committed to it by statute.”  Id., 697.  “[T]he Superior Court ․ is a court of general jurisdiction.   It has jurisdiction of all matters expressly committed to it and of all others cognizable by any law court of which the exclusive jurisdiction is not given to some other court.   The fact that no other court has exclusive jurisdiction in any matter is sufficient to give the Superior Court jurisdiction over that matter.”  In re Joshua S., 260 Conn. 182, 215 (2002).

“[N]either [the Supreme Court] nor the trial court has original subject matter jurisdiction to admit a will to probate or to entertain claims by parties contesting its admission.   Rather, the Probate Court, by virtue of its long-standing statutory authority, has exclusive subject matter jurisdiction over matters involving the validity of wills and the settlement of estates.”   Dunham v. Dunham, 204 Conn. 303, 328 (1987);  Santopietro v. New Haven, 239 Conn. 207, 213 n.8, (1996).  “[S]o far as the determination of ․ controversies is necessary to the settlement of the estate, they should be determined in the Court of Probate.”  Appeal of Slattery, 90 Conn. 48, 50 (1915).

The jurisdiction and powers of Probate Courts are set forth in Title 45a of the General Statutes.  General Statutes § 45a–98 provides, in relevant part:  “(a) Courts of probate in their respective districts shall have the power to ․ (2) admit wills to probate of persons who have died domiciled in their districts or of nondomiciliaries whose wills may be proved in their districts as provided in section 45a–287;  (3) except as provided in section 45a–98a or as limited by an applicable statute of limitations, determine title or rights of possession and use in and to any real, tangible or intangible property that constitutes, or may constitute, all or part of any trust, any decedent's estate, or any estate under control of a guardian or conservator, which trust or estate is otherwise subject to the jurisdiction of the Probate Court, including the rights and obligations of any beneficiary of the trust or estate and including the rights and obligations of any joint tenant with respect to survivorship property;  (4) except as provided in section 45a–98a, construe the meaning and effect of any will or trust agreement if a construction is required in connection with the administration or distribution of a trust or estate otherwise subject to the jurisdiction of the Probate Court, or, with respect to an inter vivos trust, if that trust is or could be subject to jurisdiction of the court for an accounting pursuant to section 45a–175, provided such an accounting need not be required ․ (6) to the extent provided for in section 45a–175, call executors, administrators, trustees, guardians, conservators, persons appointed to sell the land of minors, and attorneys-in-fact acting under powers of attorney created in accordance with section 45a–562, to account concerning the estates entrusted to their charge;  and (7) make any lawful orders or decrees to carry into effect the power and jurisdiction conferred upon them by the laws of this state. (b) The jurisdiction of courts of probate to determine title or rights or to construe instruments or to apply the doctrine of cy pres or approximation pursuant to subsection (a) of this section is concurrent with the jurisdiction of the Superior Court and does not affect the power of the Superior Court as a court of general jurisdiction.”

Section 45a–98a provides, in relevant part:  “(a) The Probate Court shall have jurisdiction under subdivision (3), (4) or (5) of subsection (a) of section 45a–98 only if (1) the matter in dispute is not pending in another court of competent jurisdiction and (2) the Probate Court does not decline jurisdiction.”

General Statutes § 45a–98a also sets forth a procedure by which disputes may be removed from the Probate Court to the Superior Court as follows:  “[A]ny interested person may file an affidavit that such person is entitled and intends under section 52–215 to claim a trial of the matter by jury.   In that case, the Probate Court shall allow the person filing the affidavit a period of sixty days within which to bring an appropriate civil action in the Superior Court to resolve the matter in dispute.   If such an action is brought in the Superior Court, the matter, after determination by the Superior Court, shall be returned to the Probate Court for completion of the Probate Court proceedings.”

“Courts of probate do not have any general equity jurisdiction ․ Similar to implied powers, probate courts possess only those equitable powers as are necessary for the performance of their statutory duties ․ [T]he equity which the Probate Court administers must grow out of and be inseparably connected with the matter the court is acting upon ․ The situation, therefore, in which the Probate Court may exercise equitable jurisdiction must be one which arises within the framework of a matter already before it, and wherein the application of equity is but a necessary step in the direction of the final determination of the entire matter.”  In re Michaela Lee R., 253 Conn. 570, 593 (2000).

General Statutes § 45a–186(a) provides in relevant part:  “Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may, ․ appeal therefrom to the Superior Court.”   This lawsuit is a Gen.Stat. § 45a–186(a) appeal from an order of the Probate Court to the Superior Court.

However, “[a]lthough the Superior Court may entertain an appeal from Probate Court, the Superior Court cannot exercise concurrent jurisdiction over subject matter within the original jurisdiction of the Probate Court.”  Benedict v. Smith, 34 Conn.Sup. 63, 64 (1977).

The court now turns to the first and third elements of res judicata;  the initial judgment was rendered on the merits by a court of competent jurisdiction and the parties had an adequate opportunity to litigate the matter fully in that prior litigation.   This court's research has been able to locate two circumstances in which a disinheritance action has been permitted in Connecticut.

The first deals with the validity of an in terrorem clause.   An in terrorem clause is a statement within a will or codicil that states that if one of the beneficiaries contests this will or codicil their inheritance will be forfeited.   A typical in terrorem clause states that if any beneficiary “shall contest the probate or the validity of this will or any provision thereof, or shall institute or join in, except as a party defendant, any proceeding to contest the validity of this will or to prevent any provision thereof from being carried out in accordance with its terms, then all benefits to any such person shall be revoked.”   In Re Estate of Andrews Probate Appeal, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number CV–89–103372 (August 8, 1991, Lewis, J.) [4 Conn. L. Rptr. 416].   Connecticut recognizes the validity of forfeiture clauses in a will but acknowledges an exception where a contest is begun in good faith, and there is probable cause and reasonable justification.  South Norwalk Trust Co. v. St. John, 92 Conn. 168, 177 (1917).   A denial of an inheritance by the invocation of an in terrorem clause is adjudicated in the Probate Court.   The Probate Court is the court of competent jurisdiction for the adjudication of in terrorem clause not the Superior Court.  Griffin v. Sturges, 131 Conn. 471, 482 (1944).   Even then “an in terrorem clause although recognized as valid in principle, is not favored by the courts and is to be construed strictly to prevent forfeitures.”  In Re Estate of Frances B. Andrews v. Probate Court, supra.

The second is disinheritance by reason of a murder conviction.   There is an ancient statute codified as Gen.Stat. § 45a–447;  “A person finally adjudged guilty, either as the principal or accessory, of any crime under section 53a–54a, 53a–54b, 53a–54c, 53a–54d, 53a–55 or 53a–55a, or in any other jurisdiction, of any crime, the essential elements of which are substantially similar to such crimes ․ shall not inherit or receive any part of the estate ․” Procedurally this statute requires an action to be brought to the Superior Court.  “For the purposes of this subdivision, an interested person may bring an action in the Superior Court for a determination, by a preponderance of the evidence, that an heir, devisee, legatee or beneficiary of the deceased who has predeceased the interested person would have been adjudged guilty, either as the principal or accessory, under section 53a–54a, 53a–54b, 53a–54c, 53a–54d, 53a–55 or 53a–55a had the heir, devisee, legatee or beneficiary survived.”  Gen.Stat. § 45a–447(a)(1).   The six above mentioned statutes are all versions of homicide:  murder, capital felony, felony murder, arson murder, manslaughter in the first degree and manslaughter in the first degree with a firearm.   The statute was amended in 2009 permitting a person to bring an action in the Superior Court.   Public Act 09–201.   The previous Stuart v. Stuart litigation had concluded five years prior to the 2009 statutory amendment permitting a Superior Court action for murder disinheritance.   The statute's predecessor Gen.Stat. § 45–279 makes no mention of the Superior Court being the court of competent jurisdiction to determine disinheritance by reason of murder.  “In all other cases where a defendant has been convicted of killing another person, the right of such defendant to inherit or take any part of the estate of the person killed or to inherit or take any estate to which such homicide terminated an intermediate estate, or hastened the time of enjoyment, or to take any property as beneficiary or survivor of the deceased shall be determined by the common-law, including equity.”  Gen.Stat. § 45a–447(b).

The determination of whether or not a murderer would be disinherited under the Gen.Stat. § 45a–447, its predecessors, Gen.Stat. § 45–279 and 1947 Section 7062, was a common-law issue.   No court was designated in the statute but the statute was codified in Chapter 802b entitled Probate Courts and Procedure, Descendant's Estates.  Section 7062 Gen.Stat. Revision of 1949, states “No person finally adjudged guilty, either as the principal or accessory, of murder in the first or second degree shall be entitled to inherit or take any part of the real or personal estate of the person killed, whether under the provisions of any act relating to interstate—succession, or devisee or legatee or otherwise under the will of such person.”

Connecticut Statute Sec. 7062 was discussed in only one reported case;  a 1953 Supreme Court declaratory judgment action that upheld the inheritance of a husband convicted of the manslaughter of his wife.  Bird v. Plunkett, 139 Conn. 491, 500 (1953).  “These authorities make clear that judicial tribunals have no concern with the policy of legislation that they cannot engraft upon the provisions of the statutes of descent and distribution an exception to bar one who feloniously kills his benefactor from succeeding to the latter's property.”  Id., 500.   Thus the statute of disinheritance by reason of murder was a modification of either the statute of wills or the rules of descent and distribution, all of which were within the sole jurisdiction of the Probate Court.

“The sociological and public policy considerations which have been stressed by the plaintiff cannot overcome the plain duty of the court to determine this controversy on the basis of existing statutes.   The right of inheritance cannot depend on ideas of court or counsel not sanctioned by statute.”  Bird v. Plunkett, 17 Conn.Sup. 368, 373 (1951).

The Bird v. Plunkett matter was brought in the Superior Court by a declatory judgment.   Neither the trial court nor the Supreme Court discussed whether the Probate Court should have entertained jurisdiction as opposed to the Superior Court.   The court finds from the above language, that both the trial court and the Supreme Court considered Section 7062 to be a modification of the statute of wills and rules of descent and distribution.   Had the issue been raised in Bird v. Plunkett, no doubt the declaratory judgment matter would have been dismissed in favor of the original jurisdiction of the Probate Court based on these public policy considerations.

Citing Bird v. Plunkett a trial court in denying summary judgment held that the ethical violations by an attorney who drafted the decedent's will and was named a beneficiary thereunder as well as the recipient of inter vivos gifts, were not sufficient to void the gifts or bequest.   These matters remained issues of fact to be resolved in the de novo proceedings in the Superior Court in the probate appeal.   Sandford v. Probate Appeal, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 05–400186 (March 23, 2007, Nadeau, J.).  “As noted, the court cannot disregard the conclusion of a duly executed will unless there exists an express exception to the plaintiff's right to take with the will.  Bird v. Plunkett, supra, 139 Conn. 498–500.”

“As a general rule, the Probate Court has exclusive subject matter jurisdiction over matters involving validity of wills and settlement of estates.”  Ferris v. Faford, 93 Conn.App. 679, 691 (2006):  Hyatt v. Paoletti, Superior Court, judicial district of New London at New London, Docket Number CV 10–6005099 S (October 22, 2011, Martin, J.) [52 Conn. L. Rptr. 848].  “If a petition is filed for admission of the will, it will be for the probate court to determine whether or not it should be granted.”  Miller v. McNamara, 135 Conn. 489, 497 (1949).   Under this analysis, if the right of inheritance is to be determined by the Probate Court, the right of disinheritance should also be determined by the Probate Court.

At this point it is necessary to bear in mind two rules of testamentary construction.   One of these is that heirs at law are not to be disinherited unless the intent to do so is clear and strong.  Hughes v. Knowlton, 37 Conn. 429, 432 (1870);  Peckham v. Lego, 57 Conn. 553, 559 (1889);  Pendleton v. Larrabee, 62 Conn. 393, 396 (1892).   Again, as an aid to construction where the meaning is in doubt, that construction will be adopted which most nearly conforms to the statute of distributions.  Hamilton v. Downs, 33 Conn. 211, 214 (1866);  Lyon v. Acker, 33 Conn. 222, 224, 225 (1866);  Geery v. Skelding, 62 Conn. 499, 501 (1893);  Conklin v. Davis, 63 Conn. 377, 381 (1893);

Ansonia National Bank v. Kunkel, 105 Conn. 744, 752 (1927).

These two rules emphasize the state's public policy against disinheritance as well as the Probate Court's jurisdiction to decide who and how much one inherits.  West Haven Bank and Trust Co. v. McCoy, 117 Conn. 489, 491 (1933).

The court concludes that there are material issues of fact as to whether the Superior Court was a court of competent jurisdiction to entertain a claim of disinheritance in the original 1994 lawsuit and whether there was an adequate opportunity to litigate the disinheritance claim in that Superior Court action.   This court is reaching this conclusion by applying the public policy of this state and the limited case law on disinheritance discussed in the terrorem clause cases and disinheritance by reason of murder.   No opposing legal authority has been furnished to this court.   The following adequate opportunity cases support this court's conclusion.  Lighthouse Landings, Inc., v. Connecticut Light & Power Co., 300 Conn 325, 351–52 (2011);  Tirozzi v. Shelby Ins. Co., 50 Conn.App. 680, 686–87 (1998);  Connecticut National Bank v. Rytman, 241 Conn. 24, 49–52 (1997);  Barton v. Norwalk, supra, 131 Conn.App. 729–30.

The court finds that elements (1) and (3) of the doctrine of res judicata involve issues of material of fact.

The defendant's Motion for Summary Judgment dated September 2, 2011 (# 105.00) as amended by the defendant's Amended Motion for Summary Judgment Addressed to Amended Complaint dated October 26, 2011 (# 112.00) is denied.

BY THE COURT

Hon. Kevin Tierney

Judge Trial Referee

Tierney, Kevin, J.T.R.