| Conn. | Mar 1, 1924
Taking the questions reserved in their order: —
1. By the statute (§ 5055) the widow is entitled to the use for life "of one-third in value of all the property, real and personal, legally or equitably owned" by her husband at the time of his death, after the payment of all debts and charges against the estate; and "the right to such third shall not be defeated by any disposition of the property by will to other parties." The value of all the property given to John by the second paragraph of the will must therefore be included in ascertaining the value of the widow's third of the estate.
2. The testator directs the trustee to divide the residuary estate into four equal parts, and he intended thereby to create four equal life interests, with remainders over. The widow's election takes one third of the whole estate out of the trustee's possession during her life. This temporarily disarranges the testator's scheme so far as the equality of the life interests is concerned. The trustee still has title as trustee to the whole residuary estate subject to the widow's statutory life interest, and at her death it will retake possession of the widow's third and carry out the testator's will, so far as it is then possible to do so. In the meantime it must make some apportionment of the remnant left in its hands, in the attempt to approximately carry out the testator's intent as to the remaining life tenants. The widow already has more than her testamentary *371 share as life tenant, and it seems that the testator's intent will be best approximated by dividing the remnant into three equal parts to be administered in accordance with paragraphs (c)(d) and (e) of section three. To divide it into four parts is unnecessary, because there are but three beneficiaries left who are entitled to income under the will. The effect of such a division would be that after satisfying the specific legacy to John, the residue would then be divided into five parts instead of four, and fresh complications would arise as to the disposition of the income of the fifth part. Richard has no interest in enjoyment until after his mother's death, and his interest as remainderman will be amply protected by the bond required of the widow as life tenant.
3. The widow's election annuls all testamentary provisions in her favor, but it does not annul any testamentary provisions in favor of others, although it may, and in this case does, suspend their operation, in whole or in part, during her life; and in so far as they are dependent upon contingencies limited to the widow's lifetime, it may make them incapable of being carried into effect at all. The result is that the provision of section (b) for setting aside one quarter of the residue is temporarily suspended, the provision for the payment of the income of such quarter to the widow is annulled; and since her statutory life use is not defeated by remarriage, the provision that upon her remarriage the corpus of the fund disposed of in section (b) shall go to the testator's son Richard, becomes incapable of execution. The provision that the corpus of one quarter of the residue shall go to Richard upon the death of the widow remains unaffected by her election, for upon her death it will be possible to readjust the division of the residue so as to comply with the testator's intent that it should be divided into four equal parts. Such *372 readjustment should be upon the basis of the inventory value of the property set to the widow for life.
Some question has been raised as to the effect of the widow's election in accelerating the vesting in enjoyment of the gift to Richard; which under the terms of the will is a gift vesting in interest at the testator's death, but postponed in enjoyment until the death or remarriage of the widow. The claim is made by Richard's guardian ad litem, that the effect of the life tenant's renunciation is to accelerate the rights of the remainderman; and that would be true, except for the fact that the renunciation by the life tenant is in this case coupled with a recaption of the life use under another claim of right, the effect of which is to leave the life tenant still in possession of all that was renounced. Until the recaptured life estate falls in, there will be nothing left for present enjoyment by the remainderman, for, as already observed, the widow's election cannot annul, though it may temporarily suspend, testamentary provisions in favor of others.
4. The contingency upon which this question is based has been excluded, and for that reason it requires no answer.
5 and 6. These questions have been fully answered in connection with question 3.
7. This question relates to a contingency which has not arisen and may never arise, and for that reason it will not be answered.
8. The proceeds of the policy referred to in this question formed no part of "the property owned by the husband at the time of his death," and are not to be included in computing the value of his estate for the purpose of ascertaining the value of the widow's third. From the time when she was named as beneficiary, the widow has had a vested interest in the proceeds of the policy of which she could not have been divested *373
by any act of the insurer or of the insured or of both acting together, except in the manner provided in the contract for a change of beneficiary. Shepard Co. v.New York Life Ins. Co.,
The questions reserved are answered as follows: No. 1, yes. No. 2, three parts. No. 3, yes, except the gift in remainder to Richard, which can take effect in enjoyment only upon the death of the widow. But this answer does not apply to the provision made for the death of Richard prior to the death of the widow, concerning which no opinion is expressed. No. 4, not answered for reasons given. No. 5, no. No. 6, the remarriage of the widow will not entitle Richard to any payment. No. 7, not answered for reason given. No. 8, no.
The Superior Court is advised to render judgment in accordance with the answers given to the foregoing questions. No costs will be taxed in favor of any party in this court.
In this opinion the other judges concurred.