Kingsbury v. Scovill

26 Conn. 349 | Conn. | 1857

Storks, C. J.

The widow of Mr. Scovill, who died intestate, having died after administration granted on his estate and before distribution, the question is, whether her personal representatives are entitled to the distributive part of his personal estate to which she would have been entitled if she had been living at the time of the distribution, or whether it belongs to his children. We are clearly of the opinion that her right to that part of his estate was a present vested interest on his death, which was not defeated by her subsequent death, and that it therefore belongs to her representatives. An equitable right to it vested in her immediately on the decease of her husband, and on the appointment of an administrator on his estate the legal title to it vested in him by relation from the time of the intestate’s decease, to the end that it should ultimately be distributed to those who, under the statute of distributions, were entitled to it; and, in the mean time, he held it as trustee for them, subject to the payment of the debts and charges against it; and the distribution when made, relates back to the original right. ■ The title or right of the distributees is not derived from the distribution, which is only an ascertainment and setting out to them in severalty of the shares of the estate to which they had respectively already become entitled by the statute.

In regard to the provisions in the statute of distributions for the children and kindred of an intestate, these principles are well settled and familiar, and indeed have not been controverted. Under the English statute of distributions, which was the basis of ours, and the construction of which by their courts is therefore to be most highly regarded, the doctrine was early established, that the distributive share of the estate of an intestate on his death vests instanter in the person who has a right to it. In Wallis v. Hodson, 2 Atk., 118, the chancellor'held that the distribution of intestate estates is governed by the civil law ; and said that nothing is more clear than that the civil law considers the child in ventre sa mere as absolutely born to all intents and purposes for the child’s benefit. That opinion was confirmed in Scattergood v. Edge, 1 Salk., 229, and in Musgrave v. Parry, 2 Vern., 710. In 3 P. Wms., 49, note d., the rule is stated to be, that if A. die intestate, and the person entitled to a distributive share die before a year expires, when distribution is to be made of the intestate’s estate, the share of the person who died thus entitled must not be distributed to the next of kin of such intestate, but to the next of kin to the person thus entitled, for the share vested in him, and from him was transmissible; and the case of Grice v. Grice, determined by Lord Cowper in 1708, is then mentioned, where a person died without a wife, leaving a father, who died without taking administration on his son’s estate, and it was held that the son’s estate belonged to the administrators of the father, and not to the next of kin to the son. (See Reeve on Descents, 57, 71.) This court established the same construction of our statute of distributions in Griswold v. Penniman, 2 Conn., 564. On that point, this decision accords with the principles adopted in the other states in regard to their statutes of distribution, so far as they have come to our knowledge. Under the statute of Massachusetts for the distribution of the personal estates of intestates, the provisions of which do not essentially differ from ours in regard to the question before us, the general principles which have been stated, were recognized and applied by the supreme court of that state, in Hayward v. Hayward, (20 Pick., 519,) which was a case exactly like the present, where it was holden that, when the widow died before distribution of the estate of her intestate husband, his children were not entitled exclusively to such estate, but that the administrator of the widow was entitled to one-third of it as her distributive share. The question does not appear to have been made in this state upon the construction of our statute of distributions in respect to the share of the widow in the personal estate of her intestate husband, but only in regard to the shares of his children and kindred ; but We can discover no good ground for making any distinction between them as to the time when their shares become vested. On this point the statute is as explicit in regard to the shares of the former as of the latter, and no sufficient reasons have been suggested why a different rule should be adopted between them. The appellants rely mainly on the expression in the commencement of the statute, which provides that the distribution of one-third part of the personal estate shall be “ to the widow of the intestate, if any there be, forever;” and claim that the phrase if any there be relates to the time of distribution and not to the intestate’s death. This would be a forced and unnatural construction. The meaning of that phrase is, in our opinion, clearly the same as if it had been in more lengthened phrase, if the intestate left any wife at his decease. The expression was not added for the purpose of qualifying the preceding part of the sentence in regard to the time when it should take effect, or of varying the effect of the provision for the benefit .of the widow; since, in regard to her, the phrase would be superfluous, as the import of that provision would be the same if that phrase were omitted, in which case, if the intestate left no widow, the provision for her would have been simply ineffectual ; but it was inserted with reference to the provisions subsequently made-in the act in favor of those to whom the estate is given in case of no widow being left by the intestate. This form of expression was adopted like several others of a similar character and import in subsequent parts of the act, as introductory to the provisions for the disposition of the estate in the event that there should be no such persons living at the death of the intestate as those to whom the estate had been before given by the act. It was the design of the act to provide for the distribution of all the intestate estate, and hence it was necessary to use such alternative' expressions as would designate who should be entitled to it on the contingency that those should not be living to whom it was intended that it should first be distributed. Discarding the phrase in question, as not preventing the vesting of the widow’s share immediately on the death of her husband, the language of the provision in her favor is left precisely like that in favor of his children and other kindred, and should receive the same construction.

The order of the court of probate appealed from should therefore be affirmed.

In this opinion the other judges concurred.

Decree of probate to be affirmed.