Colt v. Colt, 33 Conn. 270

Colt v. Colt

33 Conn. 270 | Conn. | 1866

Butler, J.

To the first question reserved for our advice we answer that James B. Colt takes a life estate only. Such *279was the clear intention of the testator when the residuary-clause was written. He gave the residue of that stock to the persons and parties to whom he had therein before given such stock, and in ratable proportions. A ratable proportion was thereby given to the persons and parties to whom the five hundred shares were given, viz., James B. Colt and his children, to be enjoyed by a life estate in one and a remainder in the others. If there had been no revocation it would have been too plain for argument, that, as they were all parties to the original legacy, they must all take in like manner in the residuum. The revocation was not sufficiently broad to take away the interest of James B. in the residuum. It was broad enough to take away that of the children. But there is nothing whatever to show an intention to enlarge the interest of James B., and such could not be the legal effect of a mere revocation of the interest of the other parties. It is not material to inquire what disposition is to be made of that remainder. It is enough that it was a distinct estate carved out for and given to his children, and never intended for or given to him.

2. The answer to the second question must depend upon facts not stated, and to be found on further inquiry by the superior court.

Executors are not chargeable with interest on unpaid legacies after one year as of course. They may be charged where interest is made by use of the fund, or they have been guilty of misconduct. In ordinary cases where dividends are declared on stock which is claimed to be specifically bequeathed, and there is such doubt about the validity of the bequest that it is the duty of the executors to test that validity, they may safely leave dividends undrawn while the litigation is ponding, unless the legatee procures some order for their delivery or investment. And in this case, if it had been a bequest of bank stock, the executors would have been justified in leaving the dividends undrawn. But this is a peculiar case. This corporation was practically the creature of the testator — a form for conducting his business, — and in effect it was under the entire control of the executors and a part of the assets of the estate in their hands. Dividends left in the business were presump*280tively used in the business and productive to the estate, and if that was so the estate should pay interest. It is for the court then by further inquiry to ascertain what the facts were-; and we can only advise that if it shall appear that the dividends in question were, in good faith, separated from the mass of the earnings of the corporation, and were kept separate, and not used or in any manner made productive by the executors, directly or in the corporate business, no interest should be allowed. But if they were not thus in good faith separated, but were kept and used in the business, then such interest should be allowed as may seem just and reasonable.

3. The third question is free from doubt. It is the very case contemplated by our statute, and we advise that the legacies to the deceased children must be treated as intestate estate. Revision of 1866, tit. 20, sec. 6.

4. The fourth question must be answered in the negative. In giving a construction to the will we held that the residuum was given independently to the persons and parties to whom stock was therein before given. It follows logically that persons and parties to whom stock was not therein before given can not take under the residuary clause.

5. In respect to the fifth question, we are of opinion that Jarvis takes and Doming does not.

The executors are parlies to whom a-bequest is made of stock, before the insertion of the residuary clause. Iu that bequest they are not described as persons, but “ as hereinafter appointed.” We think it clear that it was the intention to give both the original and "residuary legacies to those who should ultimately be appointed, and become parties by reason of their becoming executors when the will became operative. Jarvis became such a party, Doming did not. Moreover, the provision is compensatory, and clearly intended for those who should accept and perform the trust.

6. We advise that the amount of residuum of stock is five thousand three hundred and forty-six shares, of which Mrs. E. H. Colt takes .. . . ll49~

J. B. Colt for life, 574~

Samuel 0. Colt, . . 574~

*281Caldwell H. Colt, 574 ⅔

Henrietta, deceased, . 574 ⅔

Elizabeth E., deceased, . 574 ⅔

Samuel J., deceased, 574 ⅔

Christopher’s children, . 459 ⅓

R. D. Hubbard,' \ R. W. H. Jarvis, ( Executors, Mrs. E. H. Colt, ) 57 ⅓ 57 ⅓ 57 ⅓

L. P. Sargeant, . 57 ⅓

E. K. Root, . 57 ⅟

And we advise the superior court to decree accordingly.

In this opinion the other judges concurred.