Colt v. Colt, 32 Conn. 422

Colt v. Colt

32 Conn. 422 | Conn. | 1865

Dutton, J.

In June, 1856, Samuel Colt made his will, in which he bequeathed to various persons each a certain number of the shares of the stock of Colt’s Patent Fire Arms Manufacturing Co., and among others to his brother James B. Colt, the petitioner, “ the use and improvement during his life of five hundred shares of said stock, and after the death of my said brother to his issue lawfully begotten as an abso*445lute estate.” “ This bequest is on the condition that the said James B. Colt shall waive and relinquish all claims and demands, actual or pretended, which he may have against me? or against said Colt’s Patent Fire Arms Manufacturing Co.” In a subsequent clause of the will he inserted the following bequest: “ All the rest and residue of my estate, of every kind and description, not herein disposed of, I give, bequeath and devise as follows: All the remaining stock of said Colt’s Patent Fire Arms Manufacturing Co. of which I shall die possessed, shall be divided amongst the several persons and parties to whom I have hereinbefore given legacies of stock, in the ratio and proportion in which said legacies of stock are hereinbefore given. All my other residuary estate shall be divided amongst the several persons to whom I have hereinbefore given such pecuniary legacies in gross, in the ratio and proportion in which I have hereinbefore given such pecuniary legacies, meaning that my residuary estate in said stock shall be shared by the same persons to whom I have given specified legacies in stock, and in precisely the same ratable proportions; and that my other residuary estate shall bo shared by the same persons to whom I have given gross pecuniary legacies, and in precisely the same ratable proportions.” If this had been the whole of the will no doubt could have existed as to the title of the petitioner. There would have been a clear bequest to him of at least a life estate in five hundred shares of the stock of the Colt’s Patent Fire Arms Manufacturing Co., and of at least a life estate in his ratable proportion of the residue of said stock not specifically bequeathed. But in January, 1858, Col. Colt made a codicil to his will in which occurs the following passage: “I also revoke and cancel, for reasons growing out of his late unbrotherly conduct towards me, the legacy of five hundred shares of the stock of Colt’s Patent Fire Arms Manufacturing Co., given in the aforesaid will to James B. Colt for life, .remainder to his children.” And then he gives this stock to another legatee. There are some other clauses of the will to which allusion will hereafter be made as having a bearing upon the main question involved in the case, which is, whether the revoca*446tion in the codicil applies to and cancels the bequest to James B. Colt of his ratable proportion of the residue of the stock of the company.

The petitioner claims this share of the residue ; the respondents resist this claim.

By our law every testator has a right to dispose of his property to whatever persons and for whatever lawful objects he may think proper. The instrument by which he may do it is called his will, because it is the expression of his intention. The leading inquiry in such cases always is, what was the intention of the testator, for whenever that can be ascertained it is to govern.

To determine judicially this intention certain rules have been adopted by courts as aids in coming to a correct result.

One of these rules is, that the construction is to be put upon the instrument as a whole, and not upon detached portions of it. So, if there is a codicil, that is to be read in connection with the will, and the construction is to be put upon the whole as one instrument.

Another rule is, that the intention is to be inferred from the language used by the testator, explained, if necessary, by parol proof of such extrinsic circumstances as will throw light upon the meaning of the words used.

The court is not at liberty to indulge in conjecture as to what the testator would have done if a particular subject had been brought to his attention, or as to what he may have supposed that he had done by the language used in his will.

Another important rule, is that the different parts of a will, or of a will and codicil, shall be reconciled if possible, and where a bequest has been once made it shall not be considered revoked unless no other construction can be fairly put upon the language used by the testator.

According to these well settled rules, the bequest of a share of the residuary stock to James B. Colt has not been revoked.

The language of the revocation is plainly limited to the first five hundred shares. The words are, “ the legacy of five hundred shares.” It would have been difficult to have used language more definite. The bequest of the residuary shares *447is in a different clause of the will, and has no reference to this clause except for the purpose of describing the legatees. If the last bequest had been in these words, “ I also give to my brother James B. Colt-shares of the residue of said stock,” it would have been difficult to have raised a question as to a revocation. But a particular legatee can be specified as well by describing him as already a legatee as in any other way.

That the testator did not intend to revoke the residuary legacy may be inferred as well from what he did not say as from what he did. The specification of one item is always considered as implying the exclusion of others. If the testator had intended to cut off his brother entirely from any part of his property, it would have been much easier to have done it in express general terms, than to have made a specific revocation. He might have done, and naturally would have done, what in his second codicil he did do with reference to the children of James B. Colt. His language there is, “ I hereby give and bequeath to each of the children of James B. Colt a legacy of one hundred dollars, and I hereby cancel and wholly revoke any and all other legacies or devises by me at any time heretofore made to or for the use of and benefit of said children or any of them.”

It is obvious that the respondents must resort to some other rule or principle applicable to wills, or this claim of a revocation can not be sustained. This they have attempted to do.

They claim, in the first place, that it is a rule that a testator when he makes a codicil must be considered as bringing his whole will down to that time, and as speaking in his whole will as of that time. It is insisted, therefore, that this will and codicil ought to be read as of the date of the codicil, and hence after the execution of the codicil James B. Colt would not be a legatee of the five hundred shares. The bequest of the residuary shares would not apply to him. This would be a strained application of the rule, admitting it to exist. There is no doubt that for certain purposes a will of personal estate would be considered as of the date of the last codicil. The execution of such an instrument implies that the will of the *448testator continues the same, except so far as the provisions of the will are revoked or modified. But this rule is of a limited character. If a testator should make a will giving to A a black horse, described as being then owned by him, and should ten years afterwards make a codicil, and in the mean time that horse should have died and another should have been obtained, it could not be claimed that the legacy would embrace the second horse. Yet if the will must be considered as speaking at the time of the codicil, it would apply to it.

But if the will should be read as of the date of the codicil it would not be of any avail to the respondents. It would not strike the clause containing the legacy of five hundred shares out of the will. The effect would be merely to insert the codicil as the last clause in the will. The bequest of the residue of the stock, with the words “ to be divided amongst the several persons to whom 1 have herein before given legacies of stock,” would still have the same construction which we have given to it.

The second rule on which the respondents rely is, that where one devise or bequest is made as auxiliary to a previous one, if the former is revoked the other falls with it. If a testator should devise a homestead to his son, and by a subsequent clause should devise a separate lot for the pasturage of the devisee’s cows, a revocation of the devise of the homestead would revoke also that of the pasture lot, though not named. The rule is a correct one, but it has no application to these bequests. There is no connection between different shares of stock. There is no common use of them. They can be held with equal convenience separately or together. No case can be found where it has been held that a revocation of one devise operates as a revocation of another devise of merely the same kind of property. There would be no propriety in such a rule, and no reason for its adoption. It would be absurd to claim that if a testator should give a legatee two thousand dollars in one clause of his will and should also give the same legatee a thousand dollars in another clause, an express specific revocation of the former would be an implied revocation of *449the latter. The implication arises solely from the dependence of one upon the other.

The only case which gives any color to the claim of the respondents is that of Darley v. Darley, Ambler, 653. But Lord Camden’s decision in that case was reversed. Besides there was in that case some ground for holding that the testator did not intend that one of the devises should take effect without the other.

It has been strongly urged that the will itself shows that the testator was dissatisfied with the conduct of his brother. This alone would be clearly no ground for implying a revocation. If the construction was very doubtful it might perhaps turn the scale. But this will is not of that character. Besides, the dissatisfaction seems on the face of the will to be confined in its influence to the legacy of five hundred shares. The condition of relinquishing all claims and demands is limited to that legacy. We are not informed what the unbrotherly conduct of the legatee was. If we were to hazard a conjecture, it would be that James B. Colt had, after the making of the will, sued his brother on a demand which he characterizes as “ actual or pretended”—implying that he thought it, in part at least, unfounded. If this was so we should infer that the testator’s train of thought was this. “I have inserted in my will a legacy to my brother which is much more than any real or pretended claim which he has against me. But he has seen fit to sue me. I will therefore revoke that legacy and let him recover whatever he can.” Viewed in this light it furnishes no reason why the testator should refuse to do any thing whatever for a brother, when he had such abundant means, and when he was at the time of the revocation giving so munificently to benevolent objects.

It may be well to take a somewhat different view of this will and codicil.

The strongest ground that can be taken for the respondents is, that there is virtually but one legacy to James B. Colt; that the testator had determined to divide all of his stock in Colt’s Patent Fire Arms Company among certain persons in certain proportions, but not being certain how much he *450should leave at his death, he gave certain specified amounts to the legatees, in the proportion in which he intended to divide his whole stock, and then gave as a part of the same bequest the indefinite residue in the same proportions. It may be urged that he adopted this course in lieu of bequeathing the whole at once in proportion to certain numbers. There is some plausibility in this claim. If it is correct there would be a clear revocation of the whole bequest. But the most that can be said of it with any certainty is, that this may have been his intention.

The claim is not corroborated by anything else in the will or codicils, unless it may be the unfriendly feeling exhibited by the testator toward the legatee. On the other hand there are a number of particulars which would create, to say the least, a strong doubt of the correctness of this construction. The facts, that the bequests are in form separate ; that the one in the case of James B. Golt is conditional, and the other not; that the revocation names specifically the first bequest; and the improbability of the testator’s neglecting to make any bequest to a brother, are all calculated to favor a different construction.

Regarding the law then as settled, that a second legacy will never be presumed to be a dependent legacy, but that on the contrary every legacy, independent in its terms, will be presumed to be independent, and to make it otherwise a clear intention must appear on the face of the will, or will and codicil, it follows that the second legacy to James B. Colt must be regarded as an independent legacy, and consequently not affected by the revocation.

It is further claimed on the part of the respondents that this case is not within the jurisdiction of the superior court, but that the remedy is solely in the hands of the court of probate. The case comes up on a demurrer, and of course we must assume that whatever is alleged in the petition is true. From this it appears that the will was proved and administration taken out in February, 1862. The petition is dated June, 1864, more than two years after. The estate was probably larger than any ever before settled in this state. *451Prima facie it was tlie duty of the executors to pay the legacies more than a year before the date of the petition.

The legacies were payable by force of the will itself and it required no action of the court of probate to give the legatees a right to recover them. It is not customary to obtain any order for their payment. That an action would lie on the probate bond for the neglect or refusal of the executors to pay the legacy is not material. Such orders are obtained for the payment of debts, and yet suits will lie in the superior court, at least under some circumstances, against the executors on the probate bond to collect them. Swift says, that in this state whenever a legacy has become payable the legatee may bring an action at law and recover it. 1 Swift Dig., 455. Such actions before the superior court have frequently been sustained. Goodwin v. Chaffee, 4 Conn., 163; Knapp v. Hanford, 6 id., 170.

It is further insisted that there is adequate remedy at law, and therefore this petition in equity will not lie. Here again we must see what the petition alleges. The legacy is not of a pecuniary character, but of stock in an incorporated company. The petitioner is entitled to these specific shares of stock. It is not in the power of the executors to retain the shares and account to the legatee only for their value in money. The legatee can if necessary enforce the transfer of the stock to him by a bill in equity, and this is what the petitioner now asks of the superior court. Cowles v. Whitman, 10 Conn., 121. This alone would be sufficient to sustain this bill. But in addition to this, according to the allegations in the petition, the respondents have for more than a year before the commencement of this suit been receiving dividends on this stock. They have during this time been holding it in a fiduciary capacity liable to account to the petitioner. He alleges also that they refuse to render any account of what they have received, and he asks for a disclosure. These are peculiarly proper grounds for the interposition of a court of equity. The petitioner has no adequate remedy in á court of law.

We advise that the demurrer be overruled.

In this opinion the other judges concurred.