54 Conn. 224 | Conn. | 1886
The statute with regard to the division of intestate estates among the heirs and next of kin provides that “ intestate estate, after deducting expenses and charges, shall be distributed by three disinterested persons, or any two of them, under oath, appointed by the court of probate, unless all the persons interested in said estate shall be legally capable to act, and shall make and file in court a division of the same, made, executed and acknowledged like deeds of land; which instrument, being recorded in said court, shall be a valid distribution of said estate.” Gen. Statutes, p. 872, see. 5. The question in the present case is-—-whether a division of such an estate made in writing among the heirs and next of kin, all being of age and all joining, but where the division is not “ made, executed and acknowledged like deeds of land,” and is not filed and recorded in the probate court, supersedes or precludes a regular probate decree ordering such a distribution.
It is not important to the question whether deeds have passed between the heirs, releasing to each his agreed share, or whether the matter rests wholly in a written contract. The mere contract would be binding on the parties executing it, though it would of course require an exchange of deeds to make the title complete on the public records. That heirs may make such a contract and such conveyances, and that they will be valid and binding, was settled by the decision of this court in Baxter v. Gray and wife, 14 Conn., 119, and is no longer an open question. All the heirs could unite in conveying their rights to a stranger, or one heir could convey his interest to a stranger. If this is so they could certainly convey to one another.
But the question is not whether they could convey to
In Holcomb v. Sherwood, 29 Conn., 418, this court decided that where one of the heirs has conveyed away Ms interest in the real estate before distribution, the court of probate is to ignore the conveyance, and order the distribution made to the heirs as if no conveyance had been made. The conveyance of course stands good, and operates either by way of estoppel or as an assignment of the heir’s interest.
We see no reason why the same rule should not be applied here. The distribution, we think, would ordinarily be made in accordance with the division made by the parties themselves; but if it should not, any heir who should get what by the agreement he was not to take, would be bound to convey to the party who took it under the agreement, and any heir failing to get under the distribution what he had taken by the agreement, could by a proceeding in equity compel a conveyance of the agreed part to Mmself.
It is clear that, if this were not so, a court of probate would have many questions to try which it could not entertain or dispose of, and which would be entirely foreign to probate jurisdiction as now recognized. If, for instance, there had been a voluntary division by written agreement or by deeds, the question might be made whether the agreement or deeds had not been obtained by fraud or duress, or executed under mistake, or, as suggested by the pleadings
It is not however to be inferred that the probate court in every case is to disregard such a division and proceed on its own motion to order a distribution. The court will be justified in waiting for some person interested to apply for the order, and, as already suggested, it can hardly be conceived that any heir having made and concurring in such a division would apply for such an order. Where however he does apply, and the order is granted, and on the distribution the voluntary division is ignored, the case becomes one for a court of equity, which, upon the complaint of any party aggrieved, could set aside or establish the conveyances previously made or enforce the written agreement. That court, having full jurisdiction, could hear all the evidence and act finally upon it.
Our conclusion that there was no error in the matters assigned would ordinarily preclude discussion as to other errors. But in this case there is an error and inconsistency in the finding of the trial court that might mislead the probate court in revising the administration account and in ordering another distribution.
Now the finding of the Superior Court is as follows:— “ The decree of the court of probate in accepting and allowing the said administrator’s account as to all sums and items stated and appearing in schedule B in said account, except the last two items therein, to wit, except items of ‘ funeral expenses, $144.78’ and ‘estimated expenses settling estate, $75.00,’ is reversed, and all said items stated and claimed in said schedule B, except as above stated and accepted, are found not to be due, and are disallowed and rejected. The sum of the items hereby disallowed and rejected is $564.83, and in all other respects and particulars said decree is confirmed and established.”
The meaning of the court as to the items to be deducted cannot well be mistaken. All the items on the debit side of the account are rejected except the last two, which are named with the amounts. Deducting the two items excepted, which amount to $219.73, from $1,984.56, the whole amount, and we have as the correct sum of the items disallowed and rejected $1,764.83. But the court manifestly errs in stating the sum of the rejected items to be $564.83. The court makes no mention of the credit of $1,200 in the hands of the administrator. It is absurd to suppose that what the administrator acknowledged to be in his hands
There are other defects apparent on tbe record wbicb it may be well to advert to, although, for reasons to be given,
. The finding of the court may be criticised in another respect. The record shows a departure from the issue raised by the answer to the sixth reason of appeal. The answer admitted a verbal agreement to divide the personal property (except some articles not appraised,) and also the real estate, and that deeds were drawn and executed by all the heirs to consummate the agreement as to the real estate which were never delivered or exchanged, and that in consequence of certain acts in violation of the agreement by the appellants the appellees refused to carry the agreement into effect. But upon the trial, when the appellants offered evidence to prove the alleged agreement, the appellees objected, upon the ground, in substance, that as there was no pretence that the agreement was made and executed in the manner pre
For these reasons we conclude that there was no error in tbe judgment complained of.
In this opinion tbe other judges concurred.