19 Conn. 313 | Conn. | 1848
Lead Opinion
The appellants complain of the distribution of Warner Howard’s e state, made under an order of the-court of probate. They say, it is unequal; that too much real estate is set to the heirs of Julia M. and Emily ./., two daughters of said Warner Howard, who died before the distribution was made. It is true, these shares consist chiefly of real estate, while the shares of the rest consist, to a much greater extent, of personal estate. But does it follow, that the portions are unequal 1 Can we, as matter of law, decide, that a distribution is unequal, because the portions are not made up of equal parts of real and personal estate ? The property was appraised before, and if necessary, at the time, of distribution ; and there is no complaint of any inequality in the value of the shares, but only that too much real estate is given to the heirs of the two deceased daughters. The fallacy of the argument is in the assumption, that under the will of Mr. Howard, the estate shall be divided as if it was intestate, under the 30th section of the statute for the settlement of estates, and so that the male heirs shall have their parts in real estate. We think this statute has no application to the case. Besides, the 30th section of the statute, even in cases of intestacy, is by no means imperative, nor, as we believe, generally carried out: but obviously, it has nothing to do with testate estates. If the testator directs his estate to be equally divided, or gives a specific rule, and there stops, the court of probate has only to see, that, in the one case, there is an equal division in value, and in the other, a compliance with the rule given. We see no inequality in the shares : so that were we to break up this settlement, we know not what better distribution can be made. We can see, that it might be exceedingly injurious to all the devisees, to have the real estate, by itself, divided into six equal parts, and then the personal into as many more. And further, if the statute of distributions is to govern, we think the 31st section of that statute would go far towards sustaining the distribution. Had personal property, instead of real, been set out to the heirs of the deceased daughters, it is certain, the estate of Mr. Howard would not be equally divided among the surviving children. Without, however, dwelling on this point, we are fully satisfied on the other.
We advise the superior court to affirm the decree of probate.
Concurrence Opinion
concurred also in the result, but entertained somewhat different views on the subject. He remarked as follows. The principal objection to the distribution, in this case, is founded upon the claim, that the appellee, being a brother of the half blood of the two deceased sisters, is entitled only to share in their real estate, and has no interest whatever in their personal property. If this claim cannot be supported, that objection fails.
Now, the property distributed, was given, by the father, to his children, who were his heirs at law, in precisely the same manner, as they would have taken it, had there been no will. The rule of law in such case, is, that they take as heirs, and not as purchasers ; and consequently, the property may well be distributed among them, as intestate estate, and according to our statute relating to the distribution of such property. Doe v. Timins, 1 Barn. & Ald. 530. Smith v. Triggs, 1 Stra. 487. Allen v. Heber, 2 Stra. 1270. 1 Jarman on Wills, 67.
By the 31st section of that statute, it is provided, that if any of the children die before becoming of age, and before marriage, the portion of such deceased child shall be equally divided among the surviving children and their legal representatives. Stat. 235. (ed. 1838.)
The two sisters died under age, and unmarried; consequently, their portions are to be equally divided among the survivors ; and no distinction is made between portions in real and in personal property. The appellee, as one of the surviving children, under the statute, becomes entitled to a share, equal to that of either of the appellants.
As no complaint is made of any inequality in the division of the property, but the claim merely is, that it has not been so divided, as that each of the appellants may have a greater share in the estate left them by their father, on account of the decease of their two sisters, than, the appellee can have ; and as they are not entitled to that preference, no injustice has been done to them.
It is however said, that the statute requires the property to be so divided, as that the male heirs may have their parts in the real estate, so far as the estate will allow, and that that
IIow the case would stand, were he the only party complaining, and insisting upon the right, which the statute gives, to have his share set to him in the real estate, it is unnecessary to consider, as that is not the ground of his complaint.
As the case is now presented, and as no injustice appears to have been done to these appellants, and no inequality in the distribution is shown, I concur in opinion with the other members of the court, that no sufficient reason is shown for setting aside that distribution.
Decree of probate to be affirmed.