147 A. 290 | Conn. | 1929
Two questions are reserved for our advice which require an answer. First. Should the *40 value of the real estate owned by the testatrix at her death and situated outside of Connecticut be taken into consideration in determining the one third to be set aside to provide the amount whose use the husband would take under his election under the statute? In other words, should the total value of the real estate in the States of New York and New Jersey, $694,333.33, be added to the gross value of the estate as inventoried in the Court of Probate in Ridgefield and the husband's one third taken from this total instead of from the net total of the estate, less debts and administration charges, as inventoried in the Court of Probate. The solution of this problem depends entirely upon the construction to be accorded § 5055 of the General Statutes as amended by Chapter 221 of the Public Acts of 1921 which we quote in the footnote.* *41
Counsel in behalf of the husband's claim, finds support in the broad language used in this statute in fixing the measure of his interest: ". . . the survivor . . . shall be entitled to the use for life of one-third in value of all the property, real and personal, legally or equitably owned by the other at the time of his or her death, after the payment of debts and charges against the estate." Disclaiming his purpose to have this court give to this statute an extraterritorial effect, his contention is that the language of the statute requires that the value of all of the property, wherever situated, should be taken in determining the measure of the interest created by this statute. If the statute ended with the part quoted it might be difficult to successfully differ with the claim in behalf of the husband; the statute does not end at this point, but as it continues makes clear the legislative intent to include no property in fixing "one-third in value of all the property" except such property as is inventoried and is *42 distributable in this jurisdiction. The legislative intention manifested in the statute must guide the court in its construction. We must construe the statute in its entirety; its sentences cannot be segregated and their meaning extracted, one by one, apart from the rest.
The general terms of the provision, "one-third in value of all the property" are qualified and explained by later parts of the statute. Indeed, these general terms are followed by a semi-colon and that by the concluding clause of the sentence, "such third to be set out by distributors appointed by the court of probate in any property, real or personal or both, according to the judgment of such distributors." The duties of distributors on intestate estates "are statutory and ministerial; and they distribute the estate as they find it in the hands of the executor or administrator after the allowance of the final account." Cone's Appeal,
Distributors are without authority to distribute any property of the estate which has not come into the hands of the executor or administrator or which has *43
not been inventoried. The distributors appointed by the Court of Probate to set out the one third in value of all of the property of the estate to the surviving husband or wife are vested with like authority to that of the distributors of intestate estates. They can only distribute the one third from the property in the hands of the executor or administrator. Any property in their hands must be inventoried; real estate outside the State of the domicil cannot be inventoried.Edwards v. White,
That a like construction is the necessary construction to place upon this language of the statute is manifest when consideration is given to the statutory particularity of our probate procedure; with all of its definiteness we find no provision made for ascertaining the value of the real estate outside the jurisdiction of the intestate, no appraisal required or provided for, and no adjudication prescribed by a court where the real estate lies. We are asked to adopt a construction that "one third in value of all the property" means one third of all the property wheresoever it may be situated, when no ancillary administration has been taken out in New York or New Jersey, and no ascertainment there had of the debts or taxes and we are further asked to accept the value placed upon the real estate in these States made in tax proceedings. Our Courts of Probate are without authority to accept as facts those found in such manner, nor can they accept a return made by distributors, appointed to set out the surviving husband's one third, which is based in whole or part upon such facts. *44
Although the debts and taxes in New York may be substantial sums, the contention in behalf of the husband would construe our statute to mean one third of the value of this land without deduction for taxes or debts. New York, counsel inform us, has no law giving the surviving husband a right of election to a one third or any other interest in the estate of his wife. Under such circumstances, though the land in New York should be sold, the courts of New York would not be likely to permit the proceeds of the sale to be transferred to Connecticut for that would entail the setting out of one third of these proceeds for the use of the husband for life, thus diminishing the possible interest of The Cooper Union for the Advancement of Science and Art, which the courts of New York, would, in duty, protect. If the share of the husband under our statute is one third of all the property of the estate wherever located and the law of the foreign jurisdiction also makes provision for the surviving spouse, he may receive much more than one third of all the property, a result doing serious injustice to legatees. Counsel say no court would permit this and that the court would construe the maximum to be set out for the spouse as one third of all the property and deduct from the one third of the total whatever the spouse received outside the jurisdiction of the domicil. That involves reading into the statute, first, that the one third applies to property everywhere and then a provision for making this deduction. We are without authority to recast the statute even to avoid a palpable injustice. It may be the property at the domicil is small in amount and that outside the domicil is large. Though we decree that the statute means the one third of all of the estate wherever situated, we are quite powerless to enforce our decree.
The answer to this situation, counsel urge, is that *45 the fact that the court could not enforce its decree would constitute no adequate reason for not carrying out the mandate of the statute and enforcing it as far as it was able to. Such a decree would be a mere gesture of power. We ought not to conclude that the legislature intended so futile a result unless the compulsion of that construction is inescapable. It is a fundamental principle that courts will not adjudicate when they cannot enforce. A construction of our statute confining the one third of all the property to that in the hands of the executor or administrator in the domicil of the intestate avoids the insoluble practical difficulties which surround the construction contended for by the husband. Our statute does protect the surviving spouse in the interest which the statute, upon his election, gives him, but that interest is confined to the property which comes within the original or principal administration. Counsel fail to find any decision in this or any other State having a similar statute which involves the question we are called upon to decide. Our research has been equally fruitless.
Among the cases cited as having adopted in applying the dower statute the principle urged by the husband is Lawrence's Appeal,
Real estate situated outside the State being excluded from the inventory is not within the jurisdiction of the Court of Probate and must be excluded from the property in which dower or the election of a spouse is set out. No method is provided here for the appraisal of the land without the State, no authority has been or could be vested in distributors to set out any part of such land for the use of the widow, and no way has been or could be provided for enforcing such decree.
Our statutes relating to dower are to be construed together. Section 5050 gives to a widow married prior to April 20th, 1877, dower for life in one third part of the real estate of which her husband died possessed, while a companion statute, § 5052, provides that the widow as tenant in dower shall maintain the property, keep in repair the buildings, fences and lands, set out to her for dower. Manifestly this statute refers to all land set out to her, and it is equally manifest that this statute refers exclusively to land in Connecticut and cannot be construed to include land outside this State. When we say in Farmers Loan Trust Co. v.McCarty,
Cases cited — involving the construction of statutes, that no devise of any estate, real or personal, for a *47
charity shall exceed "one third of the estate of the testator leaving legal heirs," Estate of Dwyer,
Second. Is the husband entitled to receive accrued income on the amount set out for his use for life under the statute, and if so at what rate?
The interest of the husband, the surviving spouse, vests at the decease of the intestate. For the statute provides: ". . . the survivor . . . shall be entitled to the use for life of one third in value of all the property, real and personal, legally or equitably owned by the other at the time of his or her death, after the payment of debts and charges against the estate." The survivor takes the statutory share "by absolute title" and this "is one derived at death and by virtue of succession."Hartford-Connecticut Trust Co. v. Lawrence,
The use of the one third for life is an estate for life vested in the husband upon his election. It constitutes an aliquot part of the estate, taken from the residue first, if that is sufficient; if not, then the balance from the rest of the estate. If the life estate in this one third given by statute were left in trust by will for the same purpose and to the same end, the surviving spouse would unquestionably be entitled to receive the income computed from the death of the intestate. This would be true whether the bequest was "of the whole, or of an aliquot part, of the residue of an estate to a legatee for life," Bancroft v. Security Co.,
The rate of the income from the date of death to the actual setting out of the third will be the average yield of the estate for this period. Webb v. Lines, and Bancroft v. Security Co., supra.
We answer question one, No, and question two, Yes.
No costs will be taxed to either party in this court.