93 Vt. 424 | Vt. | 1919
This ease, with In re Will of William A. Lawrence, Arthur O’Brien, appellant, came to the county court on appeal from an order of distribution of the probate court for the district of New Haven, in the settlement of the estate of William
The facts found, which were not excepted to, are substantially as follows: The appellants in both suits are legatees in the will of the testator. A part of the testator’s estate was in Vermont and a part in California. The total estate in California, after the payment of debts and expenses of administration in that state, was $17,640.40 as reported by the California court, and the total estate of the testator in Vermont was $45,500, as reported by the California court, making the total value of the testator’s estate in Vermont and California $63,140.40. As stated by the California court, the specific bequests to individuals and benevolent and charitable institutions amounted to $56,193.50. The amount given to persons was $31,693.50, and to charitable and benevolent societies $24,500. The residue of the estate given to charitable and benevolent institutions amounted to $6,946.90, which added to the special bequests to those institutions, made the bequests to such institutions amount to $31,446.90. The bequests to those institutions-, therefore, amounted tc a sum exceeding one-third of $63,140.40, the total estimated estate of the testator, in the sum of- $10,400.10. This sum the California court distributed among the heirs of the testator. There were eleven heirs in all. To each of seven the court decreed $945.46 and to each of four $945.47. To eight of those heirs the testator bequeathed $200 each, to one $3,000, to another $2,000, and to appellant, Arthur O’Bryan, $1,500. To the Vermont executor the court remitted the balance of the $17,640.40 to be distributed under the will. In making this decree the California court acted under section 1313 of the California code, which is as follows: “No estate, real or personal, shall be decreed or devised (1) to any charitable or benevolent society or corporation or (2) to any person or persons in trust for charitable uses, except the same be done by will duly executed at least thirty days before the
The appellants received the amounts decreed by the California court and now ask to receive the specific legacies given in the will. The probate court for the district of New Haven refused to order payment in full to those heirs on the final settlement of the testator’s estate, but ordered and decreed that the bequests to those heirs should be reduced by the amount received by each from the estate in California, and on this basis made a decree of distribution, and it is from this decree that the appellants took their appeal to the county court.
The court below found that the estate of the testator in California included both real and personal property. To this finding the appellees excepted and to the reception of the inventory of the testator’s property in California as evidence to prove that the property there administered was partly real, and this is the first exception to be considered.
As a matter of fact the estate in California was partly real at the time the inventory was taken, and so continued until its sale under the provisions of the will, after which it became personal and was so treated by the California court in its decree to the heirs and in its remittance to the Vermont executor. It is a well-settled rule of law as administered in equity that, in the constructions of wills in which real estate is ordered to be sold and turned into money, courts of equity, in dealing with the subject, consider it as personal. Rich v. Talbot, 74 Conn. 137, 50 Atl. 52; 9 Cyc. 830, IV; Greenwood v. Greenwood, 178 Ill. 387, 53 N. E. 101; Nevitt v. Woodburn, 175 Ill. 376, 51 N. E. 593; Hammond v. Putnam, 110 Mass. 232; Askew v. Douglass, (N. J.) 3 Atl. 263; In re McGraw, 111 N. Y. 66, 19 N. E. 233, 2 L. R. A. 387; Kane v. Gott, 24 Wend. (N. Y.) 641, 35 Am. Dec. 641; Proctor v. Ferebee, 36 N. C. 143, 36 Am. Dec. 34; Peter v. Beverly, 10 Pet. 532, 9 L. ed. 522; Craig v. Leslie, 3 Wheat. 563, 4 L. ed. 460; Wharton’s Conflict of Law, § 591b.
The second and third exceptions are taken as to findings of fact, but those findings were evidently intended as an opinion of the law governing the facts found upon which the judgment was based and will be taken care of in our treatment of the exception to the judgment.
The fourth exception to the findings is of no importance, one way or the other.
The exception to the court’s failure to find, expressed in the fifth exception, if well taken, which we do not decide, is harmless error, if any, for the figures and statements in the case from which the facts claimed to have been omitted can be readily ascertained.
The sixth exception is taken care of in the briefs of the appellees before the trial court, which are made a part of the case and show what their claims were.
The exception to the admission of evidence is disposed of in the treatment of the first exception.
The question raised on the exception to the judgment may as well be treated generally as to follow the order in which it is presented in the appellees’ brief.
Having already held that the testator’s property in California is to be considered as personal, the discussion here in
The California court having decreed to eleven of the testator’s heirs, $10,400.10, contrary to the intentions of the testator as clearly expressed in the provisions of his will, and those heirs having accepted the sum decreed to each, the question arises whether they are entitled to receive their bequests in full regardless of what they have received under the decree of the California court.
The appellants claim, and it cannot be disputed, that the ancillary administrator has certain powers over personal property found in the state where ancillary administration is taken out, and that the rule is well settled that, where principal administration is taken out in one state and ancillary administration is granted in another, the court where ancillary administration is taken out has authority to settle and adjust the accounts of the administrator appointed by that court, for property or effects received by him under his appointment; and that it is discretionary with that court to order distribution there, or to remit the effects of the testator, after the payment of debts in that state and the expense of administration, to the place of the principal administration for that purpose. Heirs of Porter v. Heydock, 6 Vt. 374; In re Joyslin’s Estate, 76 Vt. 88, 56 Atl. 281; Churchill v. Boyden, Admr., 17 Vt. 319; 18 Cyc. 1236 F.; Eq. Assur. Soc. v. Vogel’s Exrx., 76 Ala. 441, 52 Am. Rep. 344; Goodall v. Marshall, 11 N. H. 88, 35 Am. Dec. 472; Graveley v. Graveley, 25 S. C. 1, 60 Am. Rep. 478. But, since the distribution of and succession to personal property, wherever situated, are governed by the laws of the country or
The law upon this subject is well settled in this State as declared in the following cases; Church v. Church’s Estate, 80 Vt. 228, 67 Atl. 549; Meach v. Meach’s Est., 31 Vt. 414; Hodges v. Phelps, 65 Vt. 303, 26 Atl. 625; Drake v. Wild, 70 Vt. 52, 39 Atl. 248; Hoyt v. Hoyt, 77 Vt. 244, 59 Atl. 845. In Church V. Church’s Estate it is said: “One who accepts of a devise or bequest does so on condition of conforming to the will, and is bound to give full effect to that instrument so far as he can, whether the testamentary provision accepted be in lieu of some right, or as a mere bounty.”
In Drake v. Wild it is said: “As the oratrix could not take both by the will and as heir, she acquired no title to the homestead except by the will. ’ ’ To the same effect are the otter Yermont cases above cited, and we know of no Vermont case holding otherwise.
The rule is so well stated, and the principle upon which it rests so clearly pointed out in Re Ogilvie, [1918] L. R. 1 Ch. Div, 492, and is so near like the case at bar in its essential facts, that we.
Counsel have discussed the constitutional question of full faith and credit to be given to the judgment of sister states, but that question does not arise in this case. The New Haven court’s decree of distribution was in no way in conflict with the decree of the California court. The New Haven court recognized the validity of the decree of the California court as vesting a portion of the testator’s estate in the appellants; but, although by the decree they became legally entitled to the same, yet, as they took in opposition to the specific provisions of the will, they held it by way of election under the Vermont law.
The authorities are not all agreed upon the effect of an election as to whether a devisee or legatee electing against the will thereby forfeits the whole of the bequest under the will, or so much only as is necessary to compensate by an equivalent those claimants whom he has disappointed, so he may entitle himself to the surplus. Story in his work on Equity Jus. (1085), says: “But the fair result of the modern leading decisions is that in such a case there is not an absolute forefeiture; but there is a duty of compensation (at least when the case admits of compensation) or its equivalent; and that the surplus after such compensation does not devolve upon the heir as a residuum undisposed of by -the will, but belongs to the donor. ’ ’
In Hattersley v. Bissett, 51 N. J. Eq. 597, 29 Atl. 187, 10 Am. St. Rep. 532, it is said: “If one chooses to stand upon his property rights against the testator’s disposition, equity will compel him to make compensation to the other beneficiary to the extent of indemnifying the latter for the loss he sustains by such election, not exceeding, however, the benefits the former receives under such testamentary disposition.” Such is the holding in Re Ogilvie, supra, and Orrell v. Orrell, L. R. 6 Ch. 302.
The probate court of the district of New Haven took the latter view of the case and decreed accordingly, with which the appellees are satisfied, and as such a disposition of the ease is
The appellant O’Bryan, claims that he cannot be held to have elected to take under the decree of the California court, because he had no part in securing that decree and became entitled to the sum decreed him without any volition on his part. But it is not true that he became entitled without any volition on his part. The title vested only upon his acceptance of the sum decreed. Election depends upon acceptance of either the provision of the will or of some right opposed to those provisions. 0 ’Bryan has accepted the sum decreed to him by the California court, and thereby has elected to take against the will, and stands as do the other heirs who have accepted the sums decreed to them by the California court.
The judgment below in both cases is reversed, and judgment for the appellees in both cases is rendered affirming the judgment of the probate court for the district of New Haven, with costs to the appellees. Let the case be certified bach to that court.