32 Conn. 482 | Conn. | 1865
The petitioners, representing themselves as .executors of the last will and testament of William Hail Mason, late of Thompson in this state, and also as trustees of a large amount of property under the previsions of this will, ask the advice of this court as a court of chancery, with reference to what they claim to be doubtful questions on the construction of the will, and as to what their duties are in the settlement of the estate and the discharge of their trust.
It has been suggested on the argument that this is not the proper mode of settling questions of this kind between heirs, legatees and cestuis que trust.
We think it is too late in this state to raise such a question.
The important questions in this case are not very numerous nor very complicated.
The téstator, William Hail Mason, made a will prior to the execution of the will in question, containing substantially many of the same provisions as are contained in this will, which has been spread upon the record, and which it has been claimed may be referred to as a means of explaining some of the provisions of this will. Whether such use could be made of it we do not deem it necessary to inquire, as we do not find that any of the provisions of this will are so doubtful as to need aid of this kind.
The will in question was dated June 29, 1858. The principal question in the case arises on the construction which ought to be given to the third item of the will, which is as follows :—“ Item third. I give, devise and bequeath to my son Amasa Mason the sum of ninety thousand dollars, which sum is to be made up and to consist of liis notes, drafts, and other evidences of debt, advancements I have made him and
The counsel of Amasa Mason claimed that by the true construction of the will these evidences of debt ought to be given up to him as well as those in the package. They insisted that the expression, 56 to be made up and to consist of his notes, drafts and other evidences of debt, &c.,” ought to be regarded as embracing all of.the notes, drafts and accounts which he then held against Amasa—the words, “ which will be found sealed up, &c.,” being used merely by way of description; and that the fact that certain notes, drafts and accounts were found in a package, although superscribed by the testator, could not vary this construction. It is insisted also that a phrase in the second codicil—“ after the delivery of the said notes, drafts, and evidences of debt to my said son Amasa,” is in aid of this as the true meaning of the will.
We think this would be a forced construction. The words in the will which are relied upon as sustaining it are immediately connected with the words, “ which will be found sealed up and among my papers and directed to him.” This shows very clearly that the testator intended to give up to Amasa those
There is nothing in the language of the codicil that leads to a different conclusion. On the contrary it refers to the debts and charges from which Amasa was to be discharged as having been mentioned and provided for in the third item of his will. We must resort to that item therefore to explain the meaning of the codicil.
To hold that these two debts, amounting to about forty tliou. sand dollars, were to be given up to Amasa, in addition to those evidences of debt which were contained in the package, would destroy that general equality which it is manifest from the whole will the testator intended to make among his three sons. On the face of the will he gives to each of them about $90,000. But if these debts are to be given up to Amasa he would have about $40,000 more than the others. If the testator had intended to give to him so valuable an article as a note of $33,000, it is reasonable to suppose that he would have done it in explicit terms.
It is asked, if the testator did not intend that these claims should be given up and discharged with the others, why did he not explicitly except them. The obvious answer is, that he had no occasion to do so. They constituted a portion of his estate. They would be collectible like any other claims unless he made a different disposition of them. It was the same as if he had directed certain claims, describing them particularly, to be given up. Others not specifié'd would of course remain a part of the estate.
Amasa’s counsel objected to like superscription on the package on the ground that, if admitted in evidence, it would be mak
It is objected further, that to introduce parol evidence to prove that such a package was found with such a superscription upon it, would be to control the operation of a written instrument by such evidence. We can see no greater objection to the introduction of this evidence to identify the package as the one to Much the will refers, than to the common unobjectionable practice of introducing parol evidence to show that there is a piece of land which corresponds to the description contained in a deed. The facts regarding the finding of the package, its contents, and the superscription on it, are admissible for the purpose of identification and nothing else. .
After the death of the testator Amasa Mason gave a receipt for the $6,000.78, containing the words “ to be reckoned as an advancement out of the estate towards bequests to me or for my benefit, in his last will and testament, the same to apply to any legacy made to me or to any person in trust for my benefit.” His counsel now object to this as-evidence to control or explain the will. The objection is well founded. However much it may tend to show that the principal claim made in this case was an after thought, still the admission, if any is made by Amasa in this writing, was merely of a point of law, and his opinion of the legal effect of the will, whether in his own favor or against him, is of no account.
The memorandum of William Hail Mason the testator on the $33,000 note, stating why ho received it, and what his executors were to do with it, is no legal evidence against the maker of the note, as it does not appear that he was privy to the indorsement. As the will makes no reference to this
The objection to verbal declarations made by the testator regarding the $33,000 note and the $6,000.78 book debt is still stronger.
After excluding all this testimony we are clearly of opinion that the note and book debt are legal and valid against Amasa in the hands of the executors as a part of the estate.
There are some questions of minor importance which can be more readily disposed of. The other devisees claim that the share of Amasa ought to be charged with the expenses of defending suits against William H. Mason as a partner of Gibson. The superior court finds that expenses were necessarily incurred, and that by the defences and judicious compromises a large sum was saved to the estate. We have no means of understanding the relation of Amasa to the Gibson concern. We must be governed therefore by the words of the codicil, which charges his share with one-fifth of only such “ sum or sums of money ” paid “ upon or by reason of any such supposed or claimed liability or liabilities, whether the same be paid upon a judgment or judgments recovered, or by way of compromise of any such supposed liability or liabilities.” Suits were brought and defended till a compromise was effected. The money paid on the compromise is not objected to. We see no equitable reason why the expenses should not be brought in, except- that the will which is our only guide does not provide for it, and therefore this claim must be disallowed.
The executors ask advice whether, in case the $33,000 note and the $6,000.78 book debt shall be held valid against Ainasa, interest ought to be computed on them. The note is drawn with interest and should draw it like any other note. No evidence has been given as to whether the book debt should draw interest or not. We understand the rule adopted in this state to be, that prima facie a mere account on book does not draw intei’est. Day v. Lockwood, 24 Conn. 186. Evidence may be introduced to show that by the agreement or understanding of the parties interest may be charged. Proof
We advise the superior court to pass a decree directing that the estate he settled in conformity with the views herein expressed.
In this opinion the other judges concurred.