165 A. 208 | Conn. | 1933
Moses Wheeler died in 1885 leaving a will in which he gave the residue and remainder of his real estate to a trustee to be divided into two equal portions, one to be apportioned to a son Walter and the other to another son John, with a further provision that at the death of either of them the trust was to cease as to his portion and it was to be divided among his heirs according to the statute of distribution. The residue of the testator's real estate was so apportioned between the sons. They were his sole heirs at law. Walter died at some time prior to November 14th, 1911, and thereafter under an order of the Court of Probate the real estate apportioned to him was distributed one third to his widow and two thirds to his daughter and sole heir at law. They entered into possession of the real estate and it was all subsequently sold by them and they received for their own use the entire proceeds. John died October 10th, 1929. The plaintiff as successor to the trustee named in the will now holds the proceeds of the portion of the real estate of which he had the life use. The complaint seeks a declaratory judgment as to the rights of the parties in this fund.
Although not admitted in the pleadings, it is now conceded that the remainder interests in the two portions of the testator's real estate were void because they were in contravention of the statute against perpetuities in force when he died. Security Co. v. Snow,
Those now claiming in the right of John contend that by the decree of distribution of the remainder interest in the portion of the estate of which Walter had the life use, the validity of the provisions of the will devising the remainder interests to the heirs of the life tenants was conclusively established, and in the distribution of the portion of the estate of which John had the life use this must be treated as having been finally adjudicated. The bare statement in the stipulated facts, that after the death of Walter the portion of the estate of which he had the life use was by order of the Court of Probate distributed to his widow and sole heir, does not afford a sufficient basis to pass upon this claim.
There is, however, another principle involved in the controversy between the parties which is independent of the doctrine of estoppel by judgment. Where there has been a partial distribution of an estate, upon the *400
final distribution any inequalities which have been created by the earlier order may be rectified by the court. Wordin's Appeal, supra; Leake v. Watson,
None of the parties are making any claim to the property distributed at the death of Walter, or to have it further administered upon. If those now claiming under the right of John were attempting to seek such a remedy, aside from any other question involved, they might be guilty of such laches as to debar them from relief. But they are merely asserting certain rights as to the intestate remainder of the portion of which John had a life use, and the determination of their rights in that remainder has not even yet come before the Court of Probate for adjudication. Moreover, one of the stipulated facts is that the parties acted upon and acquiesced in the distribution of the portion of the estate of which Walter had the life use, in ignorance of the invalidity of the remainder at his death. Nothing upon this record indicates that they have not prosecuted the rights they claim with all necessary diligence. Sleeping Giant Park Asso., Inc. v. ConnecticutQuarries Co., Inc.,
The distribution, as a part of the estate of Moses Wheeler, of the intestate remainder after the death of John, is a matter within the exclusive jurisdiction of *401
the Court of Probate, at least in the first instance, and cannot be directed by the Superior Court in this proceeding.Pigott v. Donovan,
We therefore answer the questions propounded as follows: The remainder interests in the portions of the estate in which the testator's sons had a life use were intestate because the attempted gifts of them made in the will were void as in contravention of the statute against perpetuities in force at the death of the testator, and that at his death these remainder interests vested in the sons as the testator's sole heirs at law; in the distribution of the remainder interest in the portion of the estate of which the testator's son John had the life use, those who have succeeded to his interest are entitled, if necessary to bring about a just distribution of the estate of Moses Wheeler according to law, to have regarded the equities growing out of the illegal distribution made of the remainder interest in which Walter had a life use.
No costs will be taxed in this court.
In this opinion the other judges concurred.