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Davis v. Davis-Henriques

Appellate Court of Connecticut

February 23, 2016

VERNON G. DAVIS, JR.
v.
TONETTE DAVIS-HENRIQUES ET AL

         Argued December 8, 2015.

Page 1248

          Appeal from the order of the Probate Court for the district of Greater Windsor denying the plaintiff's motion for an order admitting a certain will, brought to the Superior Court in the judicial district of Hartford where the court, Hon. Richard M. Rittenband, judge trial referee, granted the motion to dismiss filed by the named defendant et al. and rendered judgment thereon; thereafter, the court denied the plaintiff's motion to reargue, and the plaintiff appealed to this court.

          SYLLABUS

         The plaintiff appealed to this court from the judgment of the trial court dismissing his appeal from an order of the Probate Court. In the probate proceeding, the plaintiff had sought to have a will admitted as the last will and testament of the decedent. Following a hearing, the Probate Court issued a decree appointing the defendant as administratrix of the decedent's estate and declining to admit into probate the subject will, which was signed by the decedent and acknowledged by a notary public but was not attested to by two witnesses, as required by the statute (§ 45a-251) pertaining to the execution of wills. The plaintiff did not appeal from that decree, but rather subsequently filed a motion for order seeking to admit the same will into probate, and attached affidavits to the motion, which averred that the plaintiff, his wife and the notary public had witnessed the decedent sign the will. The Probate Court denied the plaintiff's motion, and the plaintiff timely appealed to the trial court pursuant to statute (§ 45a-186 [a]). The trial court dismissed the plaintiff's appeal, and this appeal followed. Held that, although the judgment of the trial court granting the defendant's motion to dismiss the plaintiff's probate appeal was procedurally incorrect, as the court should have treated the motion to dismiss as a motion to strike, the error was harmless because the operative pleading could not have survived a motion to strike and, therefore, the judgment was affirmed: because there was no dispute that the plaintiff's appeal to the trial court was timely commenced pursuant to § 45a-186 (a), that court was vested with jurisdiction over the plaintiff's appeal of the Probate Court's order denying his motion to admit the will into probate, and although the trial court granted the motion to dismiss, that court in effect viewed the motion as a challenge to the legal sufficiency of the plaintiff's pleading and, in rejecting the plaintiff's allegation of substantial compliance with § 45a-251 predicated on the affidavits provided, found that pleading to be legally insufficient, which was not a proper basis for granting a motion to dismiss; furthermore, the decree of the Probate Court declining to admit the will into probate was conclusive on the parties, entitled to full faith and credit and could not be collaterally attacked except for fraud, the plaintiff's complaint before the trial court did not allege that the probate decree was procured by fraud or mistake, and the plaintiff conceded that the proffered will did not strictly comply with § 45a-251; moreover, because this court could not rewrite the requirements of § 45a-251 for a valid will or depart from the rule of strict compliance with the statute previously adopted by our Supreme Court, this court declined the plaintiff's request to recognize a harmless error exception to the statutory requirement that a valid will contain the written attestations of two witnesses.

         Nitor V. Egbarin, for the appellant (plaintiff).

         Catherine A. Wilowski, for the appellees (named defendant et al.).

         Gruendel, Lavine and Prescott, Js. GRUENDEL, J. In this opinion the other judges concurred.

          OPINION

Page 1249

          [163 Conn.App. 302] GRUENDEL, J.

          The plaintiff, Vernon G. Davis, Jr., appeals from the judgment of the Superior Court dismissing his appeal from an order of the Probate Court. On appeal, he challenges the propriety of that dismissal. We affirm the judgment of the Superior Court.

         The relevant facts are gleaned from the plaintiff's complaint, its accompanying exhibits, and the undisputed record before us. The decedent, Edna G. Banks, [163 Conn.App. 303] died on October 26, 2012. The defendant Tonette Davis-Henriques[1] thereafter filed a petition for the administration of the decedent's estate with the Probate Court for the district of Greater Windsor. That petition listed the decedent's six children, including the plaintiff and the defendant, as heirs. The petition further represented that the decedent left no will, noting that the plaintiff " says there is a will [but] he can't find it." Weeks later, the plaintiff filed a similar petition with the Probate Court, in which he represented that the decedent had left a last will and testament (will).[2] Although signed by the decedent and acknowledged by a notary public, Shaundra Byrd, the will furnished to the Probate Court was not attested by two witnesses,[3] as required by General Statutes § 45a-251.[4]

Page 1250

          [163 Conn.App. 304] The Probate Court conducted a hearing on those petitions, which the parties attended. On November 5, 2013, the Probate Court issued a decree appointing the defendant as administratrix of the decedent's estate. In that decree, the Probate Court specifically found that " [t]he will is not duly proved, and the same is not approved and not admitted to probate as the LAST WILL AND TESTAMENT of the deceased." (Emphasis in original.) The plaintiff did not appeal from that decree to the Superior Court. See General Statutes § 45a-186 (a).

         Approximately nine months later, the plaintiff, now aided by legal counsel, filed a " motion for order admitting will into probate." In that motion, the plaintiff sought to have admitted into probate the very same will that the Probate Court deemed invalid in its November 5, 2013 decree. Appended to that motion were the July 31, 2014 affidavits of the plaintiff, his wife, Jennette Davis, and Byrd, which all averred that the plaintiff, Jennette Davis, and Byrd[5] witnessed the decedent signing the will. In response, the defendant filed an objection in which she argued that the plaintiff was seeking " another bite at the apple" after failing to appeal the November 5, 2013 decree pursuant to § 45a-186 (a). The defendant further argued that the will submitted by the plaintiff failed to comply with the requirements of § 45a-251. Following a hearing, the Probate Court on August 19, 2014, denied the plaintiff's motion, finding that " [t]he will which was sought to be admitted was one and the same document which was presented for probate [and] was not admitted for probate pursuant to the [decree] of November 5, 2013, by the Probate Court." The Probate [163 Conn.App. 305] Court, quoting General Statutes § 45a-24, emphasized that " [a]ll orders, judgments and decrees of courts of probate, rendered after notice and from which no appeal is taken, shall be conclusive and shall be entitled to full faith, credit and validity and shall not be subject to collateral attack, except for fraud." [6]

Page 1251

          From that order, the plaintiff appealed to the Superior Court. In response, the defendant, individually and as administratrix, moved to dismiss the probate appeal. Following a hearing, the ...


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