DocketNumber: No. CV97-0138792
Citation Numbers: 1997 Conn. Super. Ct. 12050
Judges: VERTEFEUILLE, J.
Filed Date: 11/6/1997
Status: Non-Precedential
Modified Date: 7/5/2016
The function of a motion to strike is to test the legal sufficiency of a pleading. Practice Book § 152; Ferryman v.Groton,
In addition to the facts set forth above, the complaint alleges that William W. Gager Sr. died on June 27, 1967 and the predecessor to the Bank of Boston, Connecticut was appointed executor of his estate. It further alleges that in April, 1996 the plaintiff asked Bank of Boston, Connecticut to begin the process to remove the Gager name from the firm and that the Bank would not do so. The plaintiff alleges that he then filed a petition with the probate court to reopen his father's estate and remove the bank as executor. The bank thereafter resigned in accordance with the direction of the probate court and the plaintiff was appointed as administrator "c.t.a." (with the will annexed) of his father's estate. The complaint concludes with the allegation that the firm has failed to remove the Gager name despite requests from the plaintiff to do so.
The defendant contends in its motion to strike and memoranda of law that the plaintiff as administrator c.t.a., but not executor, lacks the legal authority to request the firm to cease using the Gager name. The defendant relies on Pratt v. Stewart,
[W]hen the will expressly constitutes the executor a trustee for some special purpose, or vests in him a discretionary power in reference to some matter outside of the ordinary powers and duties of an executor or administrator, or charges him with some duty indicating a special confidence reposed in him in such cases the duty imposed or power conferred will not as a general rule be transmitted to the administrator.
Id. In order to determine the nature of the power in question, the Supreme Court examined the provisions of the will to determine the testator's intention. Id.
In the present case, however, the court is unable to determine the nature of the executor's power to revoke the use of the Gager name because the will is not before the court. On a motion to strike, the court is limited to the facts alleged in the complaint. Waters v. Autori, supra,
VERTEFEUILLE, J.