Catanzaro v. Catanzaro , 127 Conn. 478 ( 1941 )

I am willing to concur in the somewhat technical grounds upon which the opinion disposes of this case. In my judgment, however, the result would be the same if the appeal were regarded as presenting all the claims the plaintiff has made before us. It is my understanding of our law that a conveyance of property by a fiduciary from which he derives a personal profit is not void, but if it is attacked the burden is upon him to establish that the transaction was in all respects fair and equitable. State v. Culhane, 78 Conn. 622, 628, 63 A. 636; Sisk v. Jordan Co., 94 Conn. 384, 390, 109 A. 181; Sachs v. Feinn, 121 Conn. 77, 85, 183 A. 384. The facts abundantly establish the fairness and equity of the transaction by which the property was conveyed to the defendant Anthony Catanzaro.

A failure to follow the procedure authorized by 4951 of the General Statutes would not make the conveyance void. That section provides that the Court of Probate "may" on the written application of an executor, administrator or trustee of an insolvent estate or conservator, authorize some other person than the fiduciary to sell property of the estate and that at such sale the fiduciary may become the purchaser. This falls far short of providing that, unless the provisions of the statute are followed, a transaction by which one of the specified fiduciaries acquires property of the estate is void. The intent of the legislature is analogous to that expressed in 4939, under which a Court of Probate "may" authorize fiduciaries to settle doubtful and disputed claims; if the statute is followed, the fiduciary is thereafter protected in any payments he makes in accordance with the order of the court; but, despite the statute, he may pay such claims, taking the chance of approval when he files his account. Marks' Appeal, 116 Conn. 58, 66,163 A. 600. So the intent of 4951 is to provide a method by which the specified fiduciaries can purchase property of the estate in such a way that thereafter the transaction is not open to question; it does not prevent the fiduciary from purchasing the property without compliance with the statute; but if he does so, the transaction is thereafter open to attack upon the ground that it was constructively fraudulent. This construction of the statute is definitely stated in Delaney v. Kennaugh, 105 Conn. 557, 560,136 A. 108, where we said: "Unless the method provided in [4951] of the General Statutes is followed, a transaction by which an executor or administrator becomes a purchaser of property of the estate is voidable at the instance of heirs or distributees, provided they take proper steps to that end."