7 Conn. 21 | Conn. | 1828
The question presented by this motion, is, whether the distribution made under the will of Elijah Stough-ton, and accepted by the court of probate, was proper evidence to be received in this cause. The objection is, that the court of probate had no jurisdiction of this subject; and therefore, the proceedings are coram non judice. This depends on the sound construction of the statute relative to the settlement of testate and intestate estates. Stat. 208. tit. 32. sect. 35. This law authorizes the court of probate to appoint three freeholders to make division of such estate as is given by will to two or more devisees, where no person is appointed to divide the same, &c.
It is, however, urged, that this section relates solely to a devise of real estate] to two or more persons in common. Now, this is not the language of the statute : If it were, the construction might be different. There is no expression tending to limit it to estates in common. It would have been natural, had the intention of the legislature been so to limit it, to have used words apt to that object; but no such language is employed, nor is the court at liberty to adopt it. I infer, then, that the statute contemplates other estates than those which are given in common.
But by will, one farm is devised to A., and another to B. Here, there can be no room for a division: All the estate is given in severalty, and nothing is to be done.
There is no difficulty, then, where the estate devised is a tenancy in common, nor where it is in severalty, as is supposed in the two cases stated. The one is clearly embraced by the statute ; and the other, as clearly, not.
An intermediate description, however, might, and in my judgment, undoubtedly would, come within the statute. Thus,suppose the devise to be of the South half of a farm to A., and the North half to B., in quantity and quality ; or a thousand dollars worth on the South to A., and a thousand dollars worth on the North to B. Here, there is no estate in common devised ; and yet it is admitted there must be a division, by order of the court of probate. If, however, a river is, by the will, made the dividing line, then nothing is to be done ; no further division can be made-
This brings us to the precise question in the case. The de
Let there, therefore, be a new trial.
It is indisputable, that the jurisdiction of of the probate courts in this state, is limited ; and is conferred by statute alone. These courts have no common law jurisdiction. The question is merely this ; whether by statute, the court of probate was empowered, in any manner, to distribute the home-lot between the devisees of separate property, and thus to fix the divisional line between them. I have not heard it contended, that if the North half of the home-lot had been devised solely to the plaintiff, and the South half of it solely to the defendant, the probate court would be authorized to ascertain the dividing line between the parties, and set up metes and bounds. There would be nothing to be divided between them ; for the will would have made the division. But the pretence is, that as the North half of the lot was give to A. B., and the South half of it to C. I)., the probate court may cause a division between the separate devisees of each moiety, and thus fix the divisional line between them incidentally, in order to make a correct distribution. This position I do not admit. That the devisees of the North half of the lot are distinct and separate from the devisees of the South half, having no common interest with them in any part of the premises, is intuitively certain. Had the Northern half of the land been called Black-Acre, and the Southern, While-Acre ; the former having been
These preliminary observations having been made, that the question to be decided may be distinctly discerned, I will now recur to the law on which the plaintiff relies.
The first statute on the subject in question, was passed in October, 1716, and by successive enactments was continued in existence, in the same unvaried expressions, to the year 1821. It was then reenacted in substance, and with this difference only, that the preamble to the law, as it stood originally, was incorporated with the enacting part. By the act of May, 1821, (p. 485.) such of the revised statutes as remained substantially the same as before the revision, are to be considered as still in force, any circumstantial amendments or variations in phraseology, arrangement and connexion, notwithstanding.
It is my purpose to comment on the different parts, both of the original and revised law, in order to ascertain their precise meaning. This is the more necessary, as I have found on enquiry, that the practice of the respective courts of probate, on the matter in question, has been various ; so that no argument is deducible from a concordant exposition of the law.
The rules of construction to ascertain the intent of a law, are unquestionably established.
The first of them is, that where there is nothing but the words of an act to unfold the legislative intent, they must be taken in their plain, popular signification. Hence, it is always inadmissible, in the case-supposed, to construe a statute otherwise than from the import of the words, on a conjecture that the legislature had a different meaning. Curtis v. Hurlburt, 2 Conn. Rep. 309. 1 Kent’s Com. 432. Such conjectural construction annihilates the statute, and the judge becomes the law-maker.
It is, also, a rule of exposition firmly established, that such construction must be put upon a statute, as may best answer the intention the makers had in view. 11 Rep. 73. Plowd. 232. The reason is, that their intention is the law.
When a statute has a preamble, declaring the precise object and intent of the legislature, there is no doubt of the intention, and no room for conjecture; and unless the enacting clause is expressed in clear and unambiguous terms, the preamble conclusively shews the meaning of the law. Plowd. 369.
1 Inst. 79. 4 Term Rep. 793. A supposed convenience be
The act of 1716, and the successive enactments, until the year 1821, had a title expressive of the object in view, and a preamble defining the legislative intent.
I'pass by the title without observation, as it is no part of the law. Hardr. 324. Chance v. Adams, 1 Ld. Raym. 77.
The preamble to the act, was in the following words : “ Whereas, it sometimes happens, that real estate given by will, is ordered by the testator, to be divided among two or more legatees, and no person is appointed in the will for the dividing thereof, or the person appointed may neglect or refuse to make the said division, or die before he hath made the same.”
The mischief to be remedied appears from this recital with the most infallible certainty. It exists when there is a last will, — in which the testator orders a division of the property devised among two or more devisees, — and the order is not complied with, by reason of the non-appointment of a person to divide, or of his refusal or incapacity to fulfil the trust. The words of the preamble are plain, unequivocal and admitting of but one construction. It is only for a person to open his mind to the language, and the idea enters. The law is made to ful-fil the clear intention of the devisor ; and the key to this intention is his order, or in other words, his express direction. If he is silent on the subject of a division, he does not order or direct it, unless on this matter of fact, the law absurdly implies, that the silence of a testator is equivalent to his precept, command or authoritative direction On the contrary, the omission to order a division necessarily infers, that no such division was contemplated or intended. Under such circumstances, if the probate court direct a division, the intention of the devi-sor is not executed, but is violated.
After having made the above recited preamble, the legislature enacted, “ That when and so often as it so happens, in either of these cases, it shall be lawful for the court of probate in the county where such real estate is, to appoint freeholders to make a division thereof according to the will.” By the expression “ in either of these cases,” reference is had to the
The act of 1821, with one exception, is of the same import as the former law. The existing statute (p. 208. sect. 35.) provides, that “ when real estate given by will, is ordered by the testator, to be divided among two or more devisees, and no person* is appointed to divide the same, or the person appointed neglects or refuses to make the division, or dies before he has made it, the court of probate before which the will is proved and approved, shall appoint three freeholders, as the law provides for the dividing of intestate estates, to make division thereof, according to the will.” This law differs from the former, in one particular only. It gives jurisdiction to the court of probate to cause a division before which the will was proved and approved, instead of a probate court in the county where the land lies. At the same time, it clearly limits the jurisdiction of the court, by declaring, when the testator has ordered a division, that “ the division shall be made according to the will.” Hence, it necessarily results, if no order is made by the testator, and the will is silent concerning a division, none is authorized to be made ; because “ according to the will,” i. e. in compliance with an order or command of the de-visor, it cannot be done.
Why should the law compel a division not ordered by the devisor, nor desired by the owners ; or if desired, which may be effected by compact, or by writ of partition ? Or why should this court be pressed to give to an act a construction not warranted by ^expressions and apparent intent, to attain an object unrequested and unnecessary ? If the legislature deem it expedient, let that body in this, as in other instances, extend the law to cases like the one in question. The court
In the argument of this case, sufficient regard was not had to the marked distinction between intestate and testate estates. In the former, — i. e. intestate estates,- — the law alone takes the subject in hand, and on principles of general convenience, orders a distribution. But testate estates are precisely such as the devisor intends they shall be, if his intention is not prohibited by law. He may dispose of his estate as he pleases. A last will is the conveyance of an estate, by an individual, and is assimilated to conveyance by deed. It would seem as reasonable that some court should be empowered and enjoined to divide, ex arbitrio, all real estates among joint purchasers, without their request, as that the probate court should be authorized to do the same thing among joint devisees. I am satisfied, that the law has neither enjoined nor prescribed a proceeding so unnecessary and uncalled for ; and that the probate court had no authority to cause the distribution, or settle the divisional line, between the parties. The evidence offered, therefore, in my opinion, was legally rejected.
New trial to be granted.