Marshall v. Kleinman
Marshall v. Kleinman
Opinion of the Court
This appeal, docketed as No. 10080, concerns a judgment ordering the defendant, conservator of the estate of Charles H. Miller, to sell three parcels of real property comprising approximately 27.97 acres of vacant land located off Old Windsor Road in Bloomfield.
On October 17, 1979, the Probate Court ordered the sale of the ward’s property on Ledyard Street and Old Windsor Road to alleviate cash flow problems of the estate. The plaintiff appealed from the
In an appeal from probate, the Superior Court exercises the limited statutory jurisdiction of the Probate Court. Pastir v. Bielski, 174 Conn. 193, 194, 384 A.2d 367 (1978). The trial court conducts a trial de novo and makes an independent determination of the issues raised in the appeal. Prince v. Sheffield, 158 Conn. 286, 299, 259 A.2d 621 (1969). In so doing, to the extent that special responsibility is imposed by law on the Probate Court with respect to any of the parties, the Superior Court on appeal is charged with the same responsibility.
The performance of all of the conservator’s official duties comes under the supervision and control of the Probate Court. Johnson’s Appeal, 71 Conn. 590, 597-98 (1899); Elmendorf v. Poprocki, 155 Conn. 115, 118, 230 A.2d 1 (1967); 2 Locke & Kohn, Conn. Probate Practice § 695. “A conservator is to manage all the estate of his ward and apply so much of the net income and, if necessary, so much of the principal as is necessary to support the incapable person and his family and to pay his debts.” Cleveland, Hewitt & Clark, Probate Law and Practice § 569, p. 855. The ward has no right to possession or control as against the conservator of the ward’s estate. Johnson’s Appeal, supra, 597; Folsom & Wilhelm, Conn. Estates Practice: Commitment, Conservatorship, Guardianship, Adoption (Rev. Ed. 1979) § 61, p. 184.
Two appraisers testified at the trial. The defendant’s appraiser evaluated the land from two perspectives. If purchased by an abutting landowner, the land was worth about $14,000, or $500 per acre. If purchased by a nonabutter, the land was worth about $2800, or $100 per acre. His appraisals were affected by his belief that the use of at least one-half of the property was regulated under the Inland
Towns are authorized to establish boundaries of inland wetlands areas in their towns; General Statutes § 22a-42a (a); Begs., Conn. State Agencies § 22a-39-4.6; and to promulgate regulations to protect wetlands in the town. General Statutes § 22a-42 (c). The boundaries so established by the town and shown on its boundary maps are taken from the National Soils Survey maps. Tondro, Connecticut Land Use Begulation, p. 128 (1979); see also General Statutes §22a-38 (15).
The defendant’s appraiser relied upon his experience with other land in the same area restricted by the act and on a discussion with the town assessor which gave him the general impression that approximately one-half of the property was subject to the act. The plaintiff’s appraiser based his evaluation on the national soil map and on his familiarity with the soil; from his background he appears to have been qualified to make such an assessment. He testified that the property except for the entrance was not within the wetlands boundaries on the national
Evidence admitted without objection remains evidence in the case subject to any infirmities due to any inherent weaknesses. Danahy v. Cuneo, 130 Conn. 213, 217, 33 A.2d 132 (1943). The trier may not, however, rely only on hearsay evidence which is lacking in rational probative force. See New Haven v. Public Utilities Commission, 165 Conn. 687, 723, 345 A.2d 563 (1974). “If the evidence has no probative force, or insufficient probative value to sustain the proposition for which it is offered, the want of objection adds nothing to its worth and it will not support a finding.” McCormick, Evidence-(2d Ed.) § 54, p. 126.
The evidence does not reasonably support the low valuation accepted by the court. The defendant’s appraiser, whom the court credited, checked neither the town map nor the national map upon which the town map is based. The plaintiff’s appraiser checked the national map and testified to the soil type. Furthermore, since the prospective purchaser was a nonabutter, the applicable evaluation by the defendant’s appraiser was $2800, not the $14,000 which the court found. In accepting the $14,000 figure and applying it to a nonabutter, the trial court was using a figure which was five times the evaluation given by the defendant’s appraiser and in approving a sale for $62,000 it was accepting an amount which was more than twenty times the
The trial court erred in deciding the wetlands issue, which had such a substantial impact on the depletion of the assets of the ward, on the basis of testimony with little probative worth. In these circumstances, the judgment cannot stand.
There is error, the judgment is set aside and a new trial is ordered.
In this opinion Speziale, C. J., and Healey, J., concurred.
On the same day, the trial court approved the sale of property located at Nos. 510-512 Ledyard Street in Hartford. A separate appeal was taken from the judgment concerning the Hartford property, which we addressed in docket No. 10079. This opinion considers only the approval of the sale of the Bloomfield property.
General Statutes §§ 22a-36 through 22a-45. The wetlands restricted by the Inland Wetlands and Water Courses Aet are defined to be “land . . . which consists of any of the soil types designated as poorly drained, very poorly drained, alluvial, and flood plain by the National Cooperative Soils Survey, as may be amended from time to time, of the Soil Conservation Service of the United States Department of Agriculture . . . .” General Statutes § 22a-38 (15).
See footnote 2, supra.
Dissenting Opinion
(dissenting). I disagree with the majority’s consideration of the appraisers’ testimony. The credibility of witnesses is within the exclusive province of the trier of fact. E.g., Halperin v. Pine Plaza Corporation, 180 Conn. 85, 88, 428 A.2d 340 (1980). The court’s crediting of the evaluation presented by the defendant’s appraiser was within its sole discretion and was supported by that appraiser’s knowledge acquired by “previously working in the area” and by his testimony that the assessor’s records for the town of Bloomfield designated a great part of the land as an inland wetland area. This testimony had sufficient probative value to sustain the appraisal.
The defendant testified that he had made a general effort to sell the parcel to alleviate the estate’s cash flow problem, including listing the property with real estate brokers, and had accepted the highest bid from Jon S. Kerin, which was $62,000. There is no evidence that Kerin was in any way related to a party in interest in the conservatorship or was given any special treatment or
In this opinion Peters, J., concurred.
Reference
- Full Case Name
- Beverly Marshall v. Harry H. Kleinman, Conservator (Estate of Charles H. Miller)
- Cited By
- 23 cases
- Status
- Published