Goodwin v. Goodwin

33 Conn. 314 | Conn. | 1866

Park, J.

Horace Goodwin, late of Hartford, deceased, after devising and bequeathing certain property to his wife, declared his purpose to be that the devise and bequest should not bar her right of dower in his estate.

A part of the property that he died possessed of consisted of an estate for the term of nine hundred and ninety-nine years, with an annual rent of forty-six dollars ; and the first question submitted for our consideration is, whether the wife is entitled to dower in this part of his estate.

If an estate for so long a term of years can be regarded as real estate, then dower should be allowed, otherwise not. Revision of 1866, p. 421. The general principle is, that an estate for years is less than a freehold, and is nothing more than a chattel real, and is classed as personal property. 1 Swift Dig., 87,167. Does a long term of years stand upon different ground in this respect from a short one ? Of course the value of the reversionary interest depends upon the length of time the estate for years is to continue, and such value in the present case is exceedingly small, — too small for any substantial benefit; but does the difference in the value of reversionary interests make any difference in principle ?

If this estate had been created nine hundred and ninety years ago, it would be conceded that Horace Goodwin would have had only a chattel interest. If then at the commencement it is to be regarded as a fee simple, at what time will it change to a chattel real ? The claim of the plaintiff involves the necessity of fixing a time, and the absurdity of holding that immediately before the time shall arrive the estate will be a fee simple, and immediately after a chattel interest merely. We are unable to discover any difference in principle in this class of estates, whether they are to endure for a short or a long period of time, and we are satisfied that no distinction can be found in the common law. It is true that in the case of Brainard v. The Town of Colchester, 31 Conn., 407, Judge Dutton, in giving the opinion of the court, says in regard to an estate like the one under consideration, with the exception that in that case a gross sum was paid as the consideration for the term : — “ For all practical purposes it is a fee simple. The reversion becomes a mere imaginary estate.” The learned judge used this language in reference to the extent of the estate, and the fact that substantially it contained all the property, which is obviously true. It is equally obvious that there is some value to the reversionary interest, for it will constantly increase, and at the end of the nine hundred and ninety-nine years will be equal in value to the entire property. The learned judge did not mean to declare that, in the administration of justice between party and pai’ty, the law regards such an estate as a fee simple, and that it should be treated as such, which is the question now before us. Judge Swift, in his Digest, Vol. 1, page 87, says : “ A lease for a thousand years is considered only as an estate for years, and the lessee has only a chattel interest, which by the common law goes into the hands of his executor or administrator at his decease.” Washburn in his first volume on Real Property, page 153, says : — “ If therefore the estate of the husband be a term of years, his wife can not claim dower out of it at common law, no matter how long it is to continue, nor though it be renewable forever.” The cases of Ware v. Washington, 6 Smedes & Marsh., 737, and Spangler v. Stanler, 1 Maryland Ch. Dec., 36, are to the same effect. See also 4 Kent Com., 35, 40, and Cruise’s Digest, title Dower. We are referred to no case where the contrary doctrine has expressly been held, but a case in the second of Root’s Reports, page 15, has been cited, where the levy of an execution upon an estate for the term of nine hundred and ninety-nine years as real estate, was held good. But this decision was made on the ground that the case came within the spirit of the statute in regard to the levy of executions on real estate, and that without such construction the property would be exempt from exe cution.

On the whole we are satisfied that the common law deprives the plaintiff of the right of dower in the Market street property, and so we advise the Superior Court.

The next question is, whether, in awarding dower to the plaintiff under the provisions of the will, the property devised to her shall be taken, into consideration. This question depends upon the construction that is to be given to the will. The language is, “ I hereby declare my purpose that the above bequest and devise to my wife shall not bar her claim of dower in my estate.” The testator seems to have been laboring under the impression that the devise to his wife would deprive her of all dower in his estate unless he declared his purpose to be otherwise. If he intended that she should have dower in his estate to the same extent to which she would have been entitled to it had he died intestate, it is reasonable to suppose that he would have so stated when his mind was upon the subject. The Pearl street property he devises to her. He knew it would be absolutely hers when the time should arrive for the assignment of dower. Gould he have supposed the expression in his will was sufficient to make clear such intent and free the case of all ambiguity, when such intent rendered it necessary that the Pearl street property should contribute its share to the amount of dower, to be taken out of other property belonging to the testator, while it could in no event furnish itself any part of the actual dower ? His silence upon the subject leads us to the conclusion that he did not so intend.

Again, where dower in one piece of property is assigned in another, there is a substitution of property, a quid pro quo, for the convenience of the parties, but the Pearl street property has nothing to give in' exchange. It was all disposed of by the devise, and it seems absurd that dower should attach to property in which it can never be enjoyed. The testator could have devised other property to the plaintiff, equivalent to dower in the Pearl street property, if he had been so disposed ; but this has not been done, neither is there anything going to show any such intent. The testator declares that his wife shall not be barred of dower in his estate. Nothing was intended to be given by the declaration, and unless dower can attach to the Pearl street property no dower can be assigned in other property in consequence of it.

We think therefore that in the assignment of dower under the will, the Pearl street property must be excluded from consideration, and so we advise the superior court.

The third and last question is, whether the plaintiff is entitled to share in the residue of the estate after payment has been made of all the debts, legacies and charges upon the estate.

The defendants have declined to discuss this question, on the ground that it is of no importance in the case, inasmuch as all this class of property will be consumed in the payment of debts, legacies and expenses. The defendants must know in relation to it, for they are the parties interested in this class of property, and we therefore decline to answer the question.

A question however has been made, growing out of this inquiry,that it may be important'to decide, and that is, whether, if the plaintiff has an interest in the residue of the estate, such interest extends to the proceeds of the sale of the property on Trumbull street, which the testator directs in his will to be sold. That property the testator owned in fee simple, and unquestionably the plaintiff will be entitled to dower therein, and the question is, has she a right to share in the proceeds of the sale in another capacity ? So far as we are able to discover any reason operating upon the mind of the testator in directing the sale of this property, it was to furnish the means for the payment of the mortgage on the property devised to the plaintiff. It would be a strange construction of the will to suppose that the testator intended that his wife should not only have dower in the property, but should likewise share in the proceeds of the sale, when the will is silent on the subject, and the only reason that can be given for such construction arises from the fact that the testator directs the property to be sold, and the mortgage to be paid on the property devised to his wife.

We think she must be content with her dower in the property.

In this opinion the other judges concurred; except Carpenter, J., who did not sit.

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