71 Conn. 122 | Conn. | 1898
The will in question was admitted to probate in 1892. The executors having declined to serve, an administratrix with the will annexed was appointed, who settled the estate and rendered her administration account, which showed a balance in her hands consisting of land on Franklin street in Stamford valued at $4,000, and personal estate valued at $12,813.95. This land and residue was devised and bequeathed in trust by the 17th, 20th and 21st clauses of the will.
This application was improper; if there was any estate to distribute, the appellant should have applied for an order of distribution. The ascertainment of heirs and distributees is not, in itself and independent of distribution, a judicial act.
In 1699 an Act was passed prescribing the mode of distribution of intestate estate, and providing for the appointment of three freeholders to make the division. In 1812 a statute was passed authorizing the Court of Probate to distribute real estate devised by will to two or more persons, when the will made no provision for the division; and in 1865 a statute provided for the distribution of personal estate bequeathed to two or more persons. Under these statutes it has been the practice of probate courts to ascertain the heirs and distributees for the purpose of distribution; to order the distribution of intestate estates, and of testate estates in the case of joint devisees and legatees; and when the estate is all in cash, or there is but a single distributee, to order the executor or administrator to hand over the estate without distribution. And this practice has been held lawful. Pinney v. Bissell, 7 Conn. 21; Davenport v. Richards, 16 id. *310, 316-318.
In 1885 there was a special revision of the probate law, by which, however, the law of distribution remains substantially unchanged. The following section was added: “Sec. 197. It shall be the duty of the Court of Probate to ascertain the heirs and distributees of every intestate estate and of every testate estate so far as the will may leave the same indefinite and necessary to be defined, and in case there shall be but a single heir to whom the entire estate would descend, or in case such estate shall consist wholly of cash, such court shall order the administrator to deliver possession of, or to pay over the same, to said heir or heirs.” Public Acts of 1885, p. 514.
The duty here described has always been the duty of the Court of Probate. The section simply recites the preexisting law as settled in Davenport v. Richards. It confers no new
The appellant, however, claims that notwithstanding the form of his application, the order appealed from is a denial of distribution. The order was passed more than three years after the application was filed. It finds the heirs and distributees of the deceased to be the persons claimed by the appellant ; that the trusts created by the will are valid; that the whole estate is disposed of by the will, and that there is no estate for distribution to these heirs. The0 appellant appeals from the whole order. His appeal is certainly not from the ascertainment of the heirs, for that he admits is correct; it must be from the other parts of the order. This appeal is clearly defective, perhaps fatally so; but the appellees have not moved to dismiss nor in any way raised objections to its form, and for the purposes of this reservation we may treat it as an appeal from the denial of distribution.
Reversal of the probate order is asked for on the ground that the trust bequest is void, and therefore there is intestate estate which the appellant is entitled to have distributed. This raises the question, can a Court of Probate pass judicially on the validity of a legacy? Courts of Probate do not possess the right to try and finally determine disputed titles to property. Gold's Case, Kirby, 100; Hewitt's Appeal, 53 Conn. 24; Mallory's Appeal, 62 id. 218; Homer's Appeal, 35 id. 113; Cone's Appeal, 68 id. 84; Chamberlin's Appeal, 70
It is evident that the question, what is an exercise of the common-law power of determining title, as distinguished
In the present case, the denial of a distribution did not settle the validity of the trust bequest. The Court of Probate was dealing with the settlement of a testate estate. It might properly refuse distribution until the parties interested had, by any of the methods open to them, successfully attacked the title of the legatees; then there would have been intestate estate for the court to distribute. If, however, a legacy is, upon its face, plainly void, it may be the duty of the Court of Probate to treat the amount of such legacy as intestate estate, on the theory that no question of title really exists.
But whether a Court of Probate orders a distribution or denies one, there is a right of appeal to the Superior Court; and this right exists although the action taken was extra
When the present appeal came to the Superior Court, it could affirm the denial of distribution because the Court of Probate did not err in holding that the bequests were not clearly void. This would ordinarily be the proper course; the heirs were entitled to no other course. But it is also within the power of the court to affirm the action below because the provisions of the will are valid. The court may rest its decision on such sufficient ground as it thinks policy or justice may require. The opinion of the Court of Probate on the construction of the will would have no weight, because it has no jurisdiction of such question; the opinion of the Superior Court would have authority, because it has jurisdiction. Inasmuch as such opinion furnishes a proper and conclusive reason for refusing distribution, and is directly involved in the decision of that question, we think the reasons that would make it merely obiter, if expressed by the Court of Probate, do not apply when the case is tried by the Superior Court. The difference is this; in the Court of
In the case at bar the contested clauses of the will give a small fund for a worthy charity; all the parties interested are before the court; all the facts pertinent to the question have been found; the question in all its bearings has been fully argued, and at the request of all the parties has been submitted for decision. If the distribution is denied merely on the ground that the provisions of the will are not clearly void, the settlement of the appellant’s right to distribution would be postponed, and the fund may be subjected to the expense of another litigation involving precisely the same questions. We think the case presents an exception to the general rule we have just stated: that the Superior Court should in this case exercise its power to pass upon the whole question of the validity of the bequest in determining whether or not distribution should be granted, and that the expression of its opinion on this point is not obiter, but a legitimate reason for its action.
The claim of invalidity is confined to the 21st clause of the will. The testator, having given the property in question
The maintenance of religious services in accordance with the views of any denomination of Christians, is a public charity within the meaning of our statute of charitable uses. “We recognize the right of every man to establish foundations and charities, to promote his own or any other peculiar religious opinions.” First Cong. Soc. v. Atwater, 23 Conn. 34, 42. There is no uncertainly about the trust. The Evangelical Lutheran Church is a known and established church. There is ilo uncertainty about the beneficiaries, whether we regard them as those who shall attend the services supported by the trust fund, or as the inhabitants of Stamford where the place of worship is to be established. All necessary power of selection in providing the services is given to the trustee in the will by the terms of the gift, and by vesting in it full control in disbursing the income. Possibly some question may arise in the execution of the trust, but of its validity there can be no doubt. Hughes v. Daly, 49 Conn. 34, 35; Coit v. Comstock, 51 id. 352, 357; Tapparis Appeal, 52 id. 412; Woodruff v. Marsh, 63 id. 125, 126. The corporation named in the will declined to accept the trust, and the Court of Probate properly appointed a trustee. The power of selection passed to him as appurtenant to the trust. Dailey v. New Haven, 60 Conn. 314. The claim that the bequest is obnoxious to our late statute of perpetuities is idle.
The Superior Court is advised to affirm, for the reason given in the opinion, the action of the Court of Probate in
In this opinion the other judges concurred.
Seventeenth, I give and devise to my executors and to their successors, my real estate, including the buildings thereon, situated on Franklin street in said Stamford, in trust, nevertheless to hold the same as a place of habitation free of charge, for my said nephew and nieces jointly
Twentieth, All the rest, residue and remainder of my estate of whatever kind and wheresoever situated, I hereby give to my said executors and their successors, so as to vest in them the legal estate, but to hold the same in trust, nevertheless, for the following purposes and uses, to wit: to invest the sum of fifteen hundred (1,500) dollars in such manner and upon such security as they may deem best, and to apply the income derived therefrom, or so much thereof as may be necessary, and if necessary, at their discretion any or all of the principal sum, towards the payment of all legal taxes levied on my said real estate on Franklin
To invest the balance of said rest, residue and remainder of my estate in such manner as in the opinion of my said executors shall seem best, until the same with the accumulation of interest shall amount to fourteen thousand (14,000) dollars, and thereafter to apply the income thereof, one half annually in equal shares to the use of my said nephew Charles F. Mack and my said nieces Christine C. Schaalman, Catherine A. Mack and Emilie C. Schmitt, or such of them as shall then be living, during their natural life, and one half annually in equal shares to the use of my said nieces Dorothea W. Mack, Anna B. Mack and Effie J. Mack, or such of them as shall then be living, and in the event of the marriage of my said nephew or either of my said nieces, his or her share of said income shall be paid to him or her, for his or her sole and separate use, and in the event of the death of my said nephew or any of my said nieces, the share of such deceased shall be divided among the survivors in equal shares per capita.
Twenty-first, Upon the death of my said nephew and all of my said nieces, I direct my said executors or their successors to transfer all my estate, both real and personal and wheresoever situated, to the Evangelical Lutheran Seminary of Gettysburg, Penn., and to its successors forever, in trust, to apply a portion thereof, not exceeding the sum of fourteen thousand (14,000) dollars, towards the erection and completion of a church of brick or stone upon my said real estate on Franklin street in said Stamford, for the use of the Evangelical Lutheran Church, and to apply the income of the remainder thereof towards the support of a pastor therefor, and the maintenance of said church, paying over said income in such manner as said Evangelical Lutheran Seminary of Gettysburg, Pa., may deem expedient for such purposes, and I make this bequest and devise upon the express condition that religious services held in said church in said Stamford shall be mainly conducted in the German language, and also upon the condition there shall be placed over the main entrance to said church a marble slab or tablet, on which shall be conspicuously inscribed, in memory of my mother, the following words: “In memoriam Lucie Christine Elizabeth Mack.”