W. HUDSON CONNERY, JR. v. ELIZABETH MAY GIESKE, EXECUTRIX OF THE ESTATE OF ANN MAY MOORE et al., SC 19563

Judicial District of Ansonia-Milford

 Probate; Whether Trial Court Properly Dismissed Action Challenging Probate Court’s Refusal to Cede Jurisdiction Despite Plaintiff’s General Statutes § 45a-98a Affidavit of Intent to Claim Jury Trial; Whether Trial Court Properly Deemed Action Untimely Filed under General Statutes § 45a-186 (a). The plaintiff is the husband of the decedent and the defendants are the executrix of the decedent’s estate and the decedent’s children.  The plaintiff brought this action claiming that the Probate Court improperly refused to allow issues concerning the decedent’s will to be removed to Superior Court and tried to a jury pursuant to General Statutes § 45a-98a.  Section 45a-98a (a) allows any interested person to file an affidavit with the Probate Court signaling their intent to claim a jury trial of the matter and provides that the Probate Court shall allow the person filing the affidavit sixty days within which to bring an action in the Superior Court.  The plaintiff claimed that, at a March 6, 2013 hearing, the Probate Court orally denied his request to remove the matter to Superior Court and wrongly proceeded to consider the merits of the dispute.  The plaintiff brought this action forty days after the Probate Court hearing.  The defendants moved to dismiss the action, claiming that it was untimely under General Statutes § 45a-186 (a), which provides that appeals from some Probate Court orders must be filed “not later than thirty days after mailing of an order, denial or decree [of the Probate Court].”  The trial court granted the defendants’ motion to dismiss, finding that, while the statutory scheme does not expressly provide for an appeal of an oral order of the Probate Court, the legislature did not intend to preclude that remedy, but that this action was untimely in that it was not filed within thirty days of the hearing at which the Probate Court announced its order.  The plaintiff appeals, claiming the trial court wrongly dismissed this action as untimely under § 45a-186, the statute providing for appeals from probate, where the action is not in the nature of an appeal from probate.  The plaintiff claims instead that this suit was brought to vindicate his statutory and constitutional rights to a jury trial of the underlying dispute.  The plaintiff also claims that § 45a-186 was wrongly applied here because the statute only allows for appeals from written orders of the Probate Court and the Probate Court here issued no written “order, denial or decree” as contemplated by § 45a-186 (a).  Finally, the plaintiff argues that, while the Probate Court lost jurisdiction over this dispute by virtue of his § 45a-98a (a) affidavit seeking a jury trial, the Superior Court had jurisdiction to consider his claim that his constitutional right to a jury trial was being abridged by the Probate Court even outside the context of any § 45a-186 appeal from probate.