64 Conn. 257 | Conn. | 1894
This is an action brought to the Superior •Court alleging that doufits have arisen as to the meaning of .the will of Horatio K. Nelson, and asking advice as to its ¡proper construction in respect to clauses and provisions men-, tioned. The Superior Court has made a finding of facts, and at the request of all the parties to the cause, has re
All doubtful questions will be disposed of by construction of the so-called residuary clause, the bequest to the widow, and the bequests to the grandchildren.
It appears that Mr. Nelson made his will in February, 1887, and died in January, 1898. At the time the will was made his property included a farm—since appraised at $4,500, household effects valued at $1,000, and property well invested in personal securities, amounting to $44,500; total $50,000. At the time of his death his property was substantially the same, except that his personal securities increased the total amount to about $60,000.
The Superior Court finds that at the date of the will his property amounted to at least $50,000, but that it is impossible to find whether it amounted to more than that sum; and therefore it cannot be certainly known whether the total amount increased or decreased between the date of the will and the date of the testator’s death.
Mr. Nelson’s family at the time of making the will consisted of his wife ; a son, who had three children from two to eight years of age; a married daughter, who had three children, from twenty-three to twenty-seven years of age; and two children of adeceased daughter—Nelson A. Pomeroy aged nineteen years and Anna L. Pomeroy.
He devised his farm (all his real estate) to his son, and also gave him $8,000. To his wife he bequeathed the use of $10,000 “ so long as she remains my widow, in lieu of dower; ” to his daughter $4,000 ; to his eight grandchildren $8,000, giving $1,500 to each male, and $500 to each female; to a trustee for the use of his church $2,000. His will left undisposed of about one third of his property—or, if the reversion of his wife’s life estate be included in the residue, about one half of his property. After making these gifts the will says:—“ Should my present investments increase or decrease in amount or value, then each devisee or legatee or party hereto to share in equal proportion, as given above, or prc rata.”
If we read the language of the clause with the strongest desire of discovering the testator’s real meaning, we cannot be sure of anything beyond possibilities. It may be possible that Mr. Nelson intended to limit the operation of the statute of distribution to the-precise amount of property he left undisposed of at the time the will was made, and to secure its operation as to that amount; and so provided that if his property increased that increase should be divided between his legatees according to his peculiar rule of distribution, and if it decreased the amount- distributed by the statute should remain unchanged and the legacies be reduced proportionately. Or it may be possible, as claimed by the counsel for the executors, that in spite of the utter inadequacy of the language used, Mr. Nelson really intended tc
The next question is raised by the bequest to his wife. His will gives “ in lieu of dower ” the use and income of S10,000 “ to my beloved wife, Martha J. Nelson.” The wife is also made one of the executors, “ and without bonds.” Is the widow entitled to her distributive share of the intestate estate ?
Redfield lays down the rule:—“ The widow is not excluded from claiming her share in the undisposed personalty under the statute of distribution by reason of any provision in the will for her benefit, unless it be clearly expressed to be in satisfaction of all her claim upon the estate, or such appear from the will itself, with such aids to its construction as are allowable, to have been the intention of the testator; and the fact that she is excluded by the will from all claim of dower will not affect her claim to personal estate.” 2 Redfield on Wills, 3d edition, p. 364. In Pickering v. Stamford, 3 Ves., 331, the English Court of Chancery holds, that
It is not, however, necessary in this case to discuss the limitations of the general rules laid down, or the discriminations in their application, since the will before us clearly uses the word “dower” in its technical sense, and so excludes any implication of an intent to deprive the widow of her share of the intestate personal property. The testator desired to give all his real estate, with exclusive, immediate possession, to his son, and therefore purchased the widow’s consent by the bequest to her in lieu of dower. In this State, when a widow elects to take a legacy in lieu of dower, she is considered in the light of a purchaser, and by force of the statute, (General Statutes, § 621,) if she fails within the time limited to give notice that she declines to accept such legacy, “she shall be debarred of her dower.” Lord v. Lord, 22 Conn., 595. It follows that when, as in this case, the testamentary provision for the widow is nothing more than a bare purchase of her right of dower, the completion of that purchase by formal acceptance of the legacy, or by force of the statute in case of neglect to decline the legacy, bars her claim of dower, but cannot bar her from claiming that share of the intestate personalty to which, independently of the will, she is entitled'by the statute of distribution.
The Superior Court is advised—
1. The clause—“ Should my present investments increase or decrease in amount or value, then each devisee or legatee or party hereto to share in equal proportion as given above, or pro rata,” is void for uncertainty, and the property undisposed of by the will must be administered as intestate estate.
3. The gift to each minor grandchild vested, at the testator’s death, in the trustee named and must be paid to the trustee when the other legacies are paid. The trustee must give bonds, and his trust is limited to the sum he takes under the will.
In this opinion the other judges concurred.