32 Conn. 502 | Conn. | 1865
There is in this case a motion in arrest for the insufficiency of the replication, and a motion for a new trial by the plaintiff, on the ground that he was entitled to a much larger sum in damages than the jury awarded to him. There is also a motion for a new trial by the defendant, on the ground of the wrong construction given by the court to the will of Andrew Clark, and also to the bond in suit.
The motion in arrest is founded upon the idea that the bond, the condition of which is set out in oyer, was unauthorized by law, and therefore void, and it will be proper in the first place to dispose of this question, before coming to the questions arising on the motion for a new trial.
The statute in force at the time this bond was given did not in terms prescribe the form of the condition of an executor’s bond. It provided that if the executor should refuse, to give bond with surety for the faithful discharge of his trust, administration with the will annexed should be granted, and then, after giving the form of the condition of an administrator’s
The condition of the bond in question is different from the form thus given for an administrator’s bond, in being less specific and particular in prescribing the various duties to be performed. It provides however that the executrix shall execute the will of the deceased, and settle his estate according to its provisions, and according to law and the orders of the court of probate, and this is really all that would have been required and precisely what would have been required if the bond had as literally followed the form for an administrator’s bond as it would be proper for an executor’s bond to do; the only difference being that the specific duties which are prescribed in the form given for an administrator’s bond are in this case provided for by the general words “ shall well and truly settle said estate according to law and the orders of the court of probate.”
It was insisted upon, however, that the condition of the bond in this case required of the executrix that she should settle the estate according to the provisions of the will within one year, when by the provisions of the will much of the estate was to be finally settled and distributed only after the death of the executrix, and therefore could not be settled by her at all, and might require many years before the executors provided for after her death could 'have anything to do in respect to it; and the condition was therefore claimed to be wholly nugatory and void. If this were so it might be very questionable whether it would have any effect upon that part of the condition that could be performed within the year, and was therefore legal. The bond was hot executed under duress of any sort, and was therefore entirely voluntary, and such of its conditions as were legal and capable of being performed it would seem ought to have been performed. But the court, as we think, correctly construed the words “within one year” as applying to such duties relating to the settlement of the estate before the court of - probate as could be performed within that time, and not as applying to duties which in
The questions whether a new trial ought to be granted upon the plaintiff’s motion, because the damages are less than are required by the evidence in the case, and whether one should be granted upon the defendant’s motion, because the court misconstrued the will of Andrew Clark, may properly enough be considered together, since the damages which the plaintiff ought to recover depend very much upon the construction of that will. The will is an exceedingly inartificial instrument, the meaning of which in respect to the matter in controversy in this case has to be made out by inference, rather than from any direct language of bequest or devise.'
In the first clause of the will the testator, after appointing his wife executrix, apparently made such provision for her as he deemed sufficient. And yet, if this construction is given,
If we are correct in what has been said, then it appears that the court was in an error in charging the jury that only the use of three thousand dollars, and some household furniture, was by the will given to the widow, and that no other interest, either in terms or by implication, was given her; and ordinarily this would entitle the defendant to a new trial; but as the jury in this case certainly give the plaintiff no more than he was entitled to of the principal sum, without regard to the income or interest arising therefrom, we do not see that the defendant was at all injured by the erroneous instruction, and therefore we do not advise a new trial in his favor on this ground.
Prom what was said in regard to the construction by the court of the phrase “ within one year,” in- the condition of the bond, when considering the motion in arrest, it appears that the court below was right in the construction given to that instrument, and there is therefore no ground for a new trial in the defendant’s favor on that account, and it remains only to consider whether the evidence sustains the verdict in respect to the amount of damages awarded.
The great object of the plaintiff was to recover the interest accruing during the life of the widow, on the property which was eventually to go to_tlie grandchildren, and we do not understand that he desires a new trial except for the purpose of recovering this interest. The verdict appears to be a trifle less than the amount actually due from the testatrix. She received notes, and a bond and mortgage, all amounting to $2,600, and after deducting legacies, and a note of $200, which the jury must have found was lost by the insolvency of the maker, there was left in her hands $1,690, $1,500 of which has been paid since her decease, which would seem to leave in her hands a balance of $190. Upon what principle the jury deducted a few dollars more we do not know, but a new trial does not seem to be claimed on this ground, perhaps because the expense of another trial would be more than the
In this opinion the other judges concurred.