| Conn. | Oct 15, 1855
The application to the superior court, as a court of chancery, to set aside the distribution, in this case, can not be sustained. The subject was a matter entirely within the jurisdiction of the court of probate, and its decrees must stand, until set aside by an appeal to the superior court.
But were the case before us, upon an appeal, regularly taken, we see no ground for interfering with the doings of that court. The division made by the distributors, under the circumstances then existing, seems to us as judicious as any that could have been made.
By the terms of the will, the testator’s two sons, Benjamin and Lawrence, were to have the lands devised to them, at all events, for the period of five years from his decease. During that period, no other distribution could legally be made, than one, giving them these lands.
And we see no reason for delaying a distribution until after the expiration of that period. There was personal property, which the children might want, and which could not well be apportioned among them, without a distribution.
But the five years have now expired, and, although it is understood that Lawrence has paid the surplus due from him, yet it is found that Benjamin has paid nothing. The question now is, in what manner the four children of the testator, to whom the balance, due from Benjamin, has been distributed, shall obtain satisfaction for their claims.
Benjamin, by neglecting to pay them, was not to forfeit all his interest in his father’s estate, but was nevertheless to have his full share. All the estate of the testator, with the exception of the lands conditionally devised to him, has been distributed to the other children, and so long as that distribution stands, their title under it remains.
It/ollows, therefore, that the lands conditionally devised to him, must be applied in satisfaction of his share, and of the claims of those to whom he was to make payment, there being no other estate of the testator applicable to such purpose. And, according to the valuation in the distribution, they were equal to that claim when the distribution was made.
Were nothing more required in the case, than a simple division of those lands among the children of the testator, in proportion to their respective interests therein, perhaps adequate remedy might be had in the court of probate, by a further order of distribution; but there are other difficulties, requiring the aid of a court of equity.
Although Benjamin neglected to pay the sum required, within the time limited in the will, yet, as satisfaction may be made, to those entitled to it, by paying the principal and interest, he may still apply to a court of equity, for liberty to redeem the lands, upon paying all that may be due to them.
Again, Clemons, by his mortgage, and the decree of foreclosure, took only a portion of those lands, and the judge of probate, by the levy of his execution, another portion. Neither has any greater interest therein than Benjamin, the son, had, and both must be considered as having taken, subject to the terms prescribed in the will of the testator. In order to enable them to retain the whole of their respective portions, they must pay the amount which Benjamin was required to pay. If they refuse to do that, they can hold no greater interest than he would have had, provided no portion of that interest had been taken from him.
In case they elect to redeem the four heirs of the testator, to whom the surplus was distributed, they ought to pay in proportion to the interests they respectively have in the property. And if they refuse to redeem, and a sale is ordered, or a partition is made, the division ought to be made upon the same principle.
We advise the superior court, to pass a decree in conformity with these principles.
In this opinion, the other judges, Stores, and Hinman, concurred.
Decree accordingly.