64 Conn. 352 | Conn. | 1894
The appellant, Daniel B. Coe, was married to Emily S. Coe in 1862. She died in January, 1892, leaving an estate in personal property valued at $42,000. She also left a will in which she first provided for the payment of her just debts and funeral charges, then gave three legacies, one of three thousand dollars to her sister, and two of one thousand dollars each to grand-daughters of her husband. These legacies she provided should be paid by her executor within six months after her decease. She then gave to her husband the “ rest and residue ” of all her property during the term of his natural life, “ to receive the rents, issues and profits thereof for his own use, benefit and support.” She then gave the remainder over to certain relatives of her own, other than her sister, “to them and their heirs absolutely and forever.” She further provided as follows:—
“ Sixth. I direct that my said husband shall have the exclusive management and control of my said property without interference from any one and without giving any security for the same or the management thereof.
‘■‘■Seventh. T appoint my husband, Daniel B. Coe, executor of this, my last will and testament, and direct that no bond be required of him.”
The appellant presented said will for probate. It was proved, and he was duly qualified as executor thereof. Appraisers were appointed, and an inventory of assets prepared, filed and accepted. No suggestion was made in such document that the estate was the owner of a remainder interest
In December, 1892, the appellant, as executor of the will of Emily S. Coe, presented to the court of probate an application reciting the facts, alleging himself, as husband of the decedent, to be the legal owner of “the use, interest, and income of all the property comprised in the estate of said decedent,” and ashing for an order “ that a sufficient amount of the property of the estate, subject to the life interest of the applicant, be sold to raise so much money as would be necessary to pay the legacies, and any other amounts which may be needed in the settlement of the estate.” It was stated that a total sum of $5,500 would be required for such purpose. This application was opposed by those entitled under the will to the remainder interest, and was denied by the court.
Afterwards, in Februaiy, 1893, the appellant presented to the court of probate his account as executor, which was in the ordinary form, charging himself with the entire personal assets of the estate and with the income and dividends thereon, and then crediting himself with the amount of the legacies paid, probate fees, advertising, traveling, incidentals, legal services, income and dividends, and a sufficient amount of securities on hand to balance the debit side. To this account was appended the following: “ 11. The executor while claiming under the will the right to what the will gives him, except as to the watch and jewelry, claims also his legal life estate in the five thousand dollars used to pay legacies, and insists upon his right to be reimbursed for his life interest in the same, and to sell the remainder in sufficient property therefor.” The court allowed the account, as stated, except the item recited, which it disallowed. From these two decrees of the court of probate, namely: the denial of his application as executor to sell, and the disallowance of item 11 of the account, the appellant appealed to the Superior Court, which court sustained a demurrer to his reasons of appeal,
In reference to this proceeding, we ought perhaps to notice the exceptional and unusual manner in which it comes before us. The original appeal from the court of probate, embracing both decrees, was taken by Daniel B. Coe, executor. The reasons filed in the Superior Court were signed by said Daniel B. Coe, both as executor and as an individual. The appeal to this court is also taken by him in both capacities. On the other hand the demurrer of the appellees to the reasons of appeal, which was sustained by the Superior Court, was so general in character that it would require Very liberal construction to regard it, as the court below appears to have done, without objection by the appellant, as complying with General Statutes, § 873, which provides that: “All demurrers shall distinctly specify the reasons why the pleading demurred to is insufficient.” -Nor is the above statement exhaustive as to the informalities and infelicities in the makeup of the case presented to us. It is therefore only with a distinct declaration that our present action must not be regarded as establishing any precedent by which our future conduct may be regulated, and somewhat in view of an express waiver upon the record signed by counsel for the appellees, of objections to the appellant’s, appeal, that we have concluded to fully consider the real question involved, as if in all respects correctly before us; believing that thereby we shall best promote the interests of justice and most speedily terminate an unfortunate contention.
By virtue of the statute law of this State, General Statutes, § 2792, the appellant had a vested life interest in all the personal property of his wife. It is true that he held such property in trust, but the wife being dead and there being no issue of the marriage, his right to receive and enjoy the income thereof during his life, was absolute. It was not in the power of his wife by her own act and without his consent, either by will or otherwise, to place any limits or restrictions on that right. The language of this court in Sill
The appellant, as- we have seen, claims his statutory rights and also “under the will, the right to what the will gives him.” He insists that Sill v. White is an authority in direct support of such claim. In that case it appeared that the husband was executor of the will, accepted the trust, and settled the estate. But so far as the property in controversy was concerned—-real estate—in which the law gave him a tenancy by the curtesy, and the will a life interest together with a power, it was expressly declared in the opinion that he had made no election as to which title he would take. “ He has said nothing, has done nothing. He has remained passive and silent, as he had a right to do. He-has not even indicated that he proposes to_ avail himself of the privileges which the will gives him. Manifestly he cannot thus be held to have lost his life estate by the curtesy.” In the case now before us the husband has surely “indicated that he proposes to avail himself of the privileges which the.will gives him.” He distinctly so states. He has not remained silent
Is it possible that by any authority of statute or course of procedure, a court of probate can do that which the appellant asks, or assist him in the creation of a fresh fund on which to attach a new life estate in substitution for that with which he has voluntarily parted ? Let us give to this matter a little further consideration. Taking the appellant in his somewhat manifold aspect of executor, statutory trustee, and individual, and giving him the full benefit of the complex relation—for he perhaps correctly states an anomaly of his position in saying it is necessary that he should'appear in all capacities in order to have any apparent standing in
But the appellant, at the close of his administration account, made, as we have seen, in the court of probate, a different-claim, namely: that the remainder in sufficient property should be sold to reimburse him for his life interest in the sum used to pay legacies. In other words, as we understand it, that the present worth of an annuity equal to the income on the_ sum in question, for a length of time corresponding to his expectation of life, should be ascertained, and then sufficient, not of the principal, but of the remainder interest in the principal, subject to his life use, should be sold, and the avails paid by himself, as executor and beneficiary under the will, to himself, as statutory- trustee under the law,
It seems to us that every one of the courses above indicated, and every other which can be conceived for the relief of the applicant from his entirely self-assumed and unnecessary position, is capable of being met by insuperable objections. A fundamental difficulty with them all is, that however the appellant’s position may be stated, it necessarily involves an unwarranted interference with the rights of the residuary remainder legatees under the will of Mrs. Coe, to receive precisely what the instrument confers upon them in its expression of the bounty of the testatrix. Their rights can in no way be impaired or rendered less beneficial by any act done by the appellant, either as statutory trustee, as executor, as individual, or as each separately or all at once, without their approval or consent.
It is said that these legacies, if unpaid, would bear interest, commencing six months from the decease of the testatrix. The question is not before us, and we cannot decide it; but if this be true, it may be that these remainder legatees are benefited by the act of the appellant in paying the legacies, as the matter now stands. If so, it was a benefit which they never requested, and does not sanction an injury to which they refuse to assent. They are entitled to insist that the appellant should either decline to pay these legacies at all, during the continuance of his life estate ; or that having paid them out of the property of the estate, he should be content to remain in the position in which such payment leaves him, and not extricate himself from a situation which he was under no obligation to take, by compelling them to .a
It surely requires neither argument nor extended statement to demonstrate that a clear remainder title to specific assets, charged only with the payment of definite legacies, with or without interest arrears, is far more desirable and beneficial than a tenancy in common in the remainder interest, either in such specific assets or in the general bulb and carpus of residuary personal estate. It is also evident that any sale of such future interest, expectant on a particular life estate of uncertain and speculative duration, would yield at be'st, onty an unsatisfactory approximation of its actual value, and would involve a probable sacrifice to the remainder interest, which nothing but the specific, express sanction of law could either justify or excuse.
It is perhaps only stating the above considerations in another way, to say that not only is no power vested in that strictly statutory tribunal, the court of probate, to grant the appellant any such relief as that which he seeks—and there is none in the Superior Court on appeal, to do more than the court of probate itself could do in the first instance—but further, we can conceive of no such power in any court or
Finally, it is undisputed law in this State that “ a husband may by his own acts divest himself of the trust which the statutes give him in his wife’s property.” State v. French, 60 Conn., 481. Whether this has been done in a particular case is ordinarily a question of intention to be inferred or presumed from conduct. In this case the demurrer is said to admit, for the purposes of the trial, an allegation not in
There is no error in the judgment complained of.
In this opinion the others judge concurred.