64 Conn. 414 | Conn. | 1894
Lorenzo Blackstone, late of Norwich, died in 1888, leaving a last will by which he disposed of a large residuary estate, giving to trustees one third of the same in trust, to pay the income therefrom to his wife, Emily Blackstone, who is still surviving, during her life. The other two thirds, by the fourth clause of his will, he directed should be divided into eighteen equal parts or shares, and these shares be disposed of to and among his five children, giving to the appellant, who is one of said children, four of such shares, one absolutely, the other three to be held in trust for his benefit. The sixth clause of said will is as follows: “ There is to be. deducted from the shares given to each of my said children, or in trust for their use in the fourth clause of this will, the amounts charged to them respectively on my books. These amounts are to be embraced in the inventory of my estate.”
On the 31st day of July, 1893, the distributors of said estate made return of their doings to the court of probate for the district of Norwich, which on said day accepted and approved said distribution. In said instrument the distributors stated: “We have determined the amounts due to the residuary legatees under the will of said deceased, in accordance with the provisions of said will, to be the following:
Gross inventory, . $1,618,908.57
Less debts, expenses and legacies, 318,230.81
Residue, principal, $1,300,677.76
Advancements, .... 199,470.95
$1,101,206.81
■J in trust for life of Emily Blackstone, 367,068.94
Balance, ...... 734,137.87
Add advancements, 199,470.95
$933,608.82
XV of -§ of this residue of principal=$51,867.15
J. D. T. Blackstone x,s= $207,468.63 ”
“ Principal estate, residue, . . . $1,300,677.76
Less advancements, .... 199, 470.95
Estate producing income, . . . $1,101,206.81
$1,101,206.81 earned $243,108.60, or 22.07656 per cent.
Shares. Earned Income,
Mrs. Emily Blackstone, $366,068.93 80,815.43
J. D. T. Blackstone, $94,083.34 20,770.37 ”
From the decree of the court of probate approving such action, the said J. De T. Blackstone appealed to the Superior Court, which made a finding embracing the above facts, and thereupon reserved the case for our advice.
The appellant in his reasons of appeal claims, in substance, that the distributors should have distributed to him, and in trust for him, ^ of § of the entire earned income to the time of settlement of the administration account, namely $36,006, instead of said sum of $20,770.37; and this raises the only question which the appeal presents for our consideration.
This involves a construction of the sixth clause of the testator’s will, and the determination of the intention therein
In favor of the appellant’s contention on this point it is claimed that the amounts advanced by the testator to his children were directed to be inventoried, and were in fact inventoried, as a part of his estate, and that they were declared to be such by the testator in his will; that “if the estate had been intestate there would have been no question as to when and how the several advancements should have been deducted, or that they should have been deducted from the estate existing at the time the estate was ready for distribution, which would have included not only the estate left by the deceased at the time of his death, but the earned income during the time of the settlement of the estate; ” that if the terms of the will leave this question in doubt, that construction which most nearly conforms to the statute of distributions should be adopted.
Opposed to this, it is to be considered that if the testator had not made provision in reference to these sums, they could in no wise have affected the prescribed testate shares of bis children in his estate; that the object of such provision was manifestly equality between such children; between the three sons, each of whom received four eighteenths, and the two daughters, each of whom received three eighteenths of such residue. If the testator by his direction to embrace these amounts in the inventory of his estate intended, as the
This intention is further evidenced by the provision in the third clause, as to the wife of the testator, to whom is to be paid during her life “ the net income ” arising from “one third of the balance of my estate.” This is followed by the fourth clause, beginning with the expression: “ The other two thirds of said residue shall be divided into eighteen equal parts or shares.” In ascertaining the third to be set to the widow, the distributors followed the rule laid down in Porter v. Collins, 7 Conn. 4,—that her third did not include the advancements,—and their action was approved by the court of probate. Neither the action of the distributors, nor the approval of the court of probate has been appealed from. On the contrary, counsel for the appellant tells us in his argument in this court that the appellant regards that action
It may be further added that by the fifth clause of the will, upon the decease of the wife of the testator, the one third of his estate held in trust for her use is to be divided and aparted in precisely the same manner as the remaining two thirds were directed to be by the fourth clause; preserving therein, also, the same idea of equality, so far as. consistent with the perhaps peculiar preference manifested for sons over daughters.
For these reasons it seems to us it was the manifest intention of the testator, that in making the distribution of his estate there should be deducted from the share of said estate which was to be distributed to the appellant, and in trust for him, the amount charged on the books of the testator against him ($113,385.29), as of the date of the death of the testator; and than thei-e was properly distributed to him, as his proportional share of the income of said estate, such part only of the entire income as corresponded with his share of the clear residue existing at the death of the testator, as such residue was at last ascertained. The distributors therefore adopted the true rule, and the Superior Court is advised that the decree of the court of probate appealed from should be affirmed.
In this opinion the other judges concurred.