Platt v. Platt

| Conn. | Apr 15, 1875

Carpenter, J.

The testator, after' providing for the payment of his debts, funeral expenses, and charges of settling his estate, directed that all the rest and residue Of his estate be divided into “ six equal parts or shares,” one of which he gave' to each of hi's children, and the representatives of a deceased child. The seventh .clause in the will, and the one on which the principal question in the' Cáse arises, is as follows:

“ Seventh. To each of my sons, William S. Platt and Clark M. Platt, respectively, I give and bequeath one of said shares, to them and their líéirs respectively forever. And I further direct that the two shares thus devised and bequeathed shall be provided for and assigned i'U the following manner, to wit :• A fair and just appraisal shall be set upon all the' real estate, machinery, tools, stock and property of the A. Platt & Sons’ button factory, in which I own á one-third interest; also upofi the brick fire-proof building lately érected by me; also upon' the foiling mill owned by me, and the water power connected therewith; and that my said sons have' áñd táke' these several estates and properties at their said appraisal,, as applying upon tliéir respective' shares; and whatever their appraised value shall exceed the value of their two shares jointly, they shall pay back such excess to the remaining heirs, to make up the full amount of their respective shares.”

The great question in the case, and the one on which nearly all the other questions hinge, is, whether the shares given by this clause vested at the death of the testator, or whether they take effect, like the other shares, upon the distribution.

The respondents claim that the devises and legacies given to the surviving partners are specific, and therefore that they vested immediately on the death of the testator. That such is the rule applicable to specific legacies generally is admitted. But that rule rests upon the presumed intention of the testator ; and when a contrary intention appears, either expressly or by implication, the rule does not apply.

We are to look therefore at this will for the purpose of ascertaining the intention of the testator.

The second clause divides his estate into “ six equal parts or shares.” The language used manifestly contemplates one division or distribution, and one only. It is a division of the whole of the residue of his estate, and not of a part of it; and it is to be made after the charges of settling his estate are deducted; clearly implying that the distribution is to be made at the ordinary time, at the close of the settlement of the estate.

Equality is a prominent feature, not only of the second and seventh clauses, but of the whole will. His intention that all his children shall share equally is clearly expressed, and we are bound to give effect to that intention. If the surviving partners are permitted to take their shares immediately, and are entitled to receive the income and profits arising therefrom during the settlement of the estate, and also to share in the income from the remaining estate, they gain a pecuniary advantage over the other legatees, which destroys the equality, and does violence to the manifest intention of the testator.

We therefore interpret the seventh clause as meaning simply, that when the estate is distributed, the two partners shall take all the testator’s interest in the partnership property and the other property specified; and if its valuation shall exceed the amount of their shares, the excess shall be paid to the other heirs, so as to preserve the equality. Their legacies are specific, in the sense that they are to be satisfied from certain specified property; but they are not specific in such a sense as to require the application of a rule of law which will defeat the plain and unmistakable intention of the testator.

It follows logically from what has already been said, that the surviving partners, being legatees, must account to the executors for the profits which they have received from the testator’s share in the partnership property during the settlement of the estate.

For the same reasons we think the executors are entitled, at reasonable times, and in a proper manner, to inspect the partnership books. This seems necessary in order that they may know and protect their rights.

The next question has reference to the appraisal spoken of in the seventh clause. The question is, whether the appraisal made when the inventory was taken, or some other appraisal to be made, is to be the basis of distribution.

We regard this as a question of fact rather than a question of law. Courts of probate in this state, as to all matters within their jurisdiction, have ample powers to administer both law and equity. It seems to be the practice, and both the practice and its legality are recognized by numerous decisions of this court, for distributors appointed by courts of probate to make an appraisal, or re-valuation, of any property they are called upon to distribute, in all cases when it is necessary to a just and equal distribution of the estate. Beach v. Norton, 9 Conn., 197; Davenport v. Richards, 16 Conn., 317; Howard v. Howard, 19 Conn., 317; Moore v. Holmes, 32 Conn., 558.

There is not the slightest difficulty in pursuing that course, if necessary, in the present case. If not necessary, but a just disti-ibution can be made upon the appraisal already existing, we see no legal objection to pursuing that course. In one way or the other, or in some other manner, the court of probate is competent to make distribution so as to do no injustice. If the substantial requirements of the will are complied with, the manner of doing it is not very material.

We are clearly of the opinion that the good-will of the business carried on by the partnership—that business being continued after the death of the testator—is proper to be considered in estimating the value of the testator’s interest in the partnership. That was done in the appraisal which has been made, and should be done in any appraisal which may hereafter be made.

We do not regard the payment by William S. and Clark M. Platt of the excess required by the seventh clause, as a condition precedent to the vesting of their respective shares. The first sentence gives the legacies unconditionally. The property to be applied to their payment is next mentioned, with the requirement that the excess, if any, shall be paid to the other heirs. We think the payment is either a condition subsequent, or a mere debt or duty arising upon the acceptance of the legacies. Whether it is the one or the other, and what remedy the other heirs may have in case payment is refused, are questions which we need not consider now.

The Superior Court is therefore advised:

1st. That the legacies to William S. and Clark M. Platt will vest in them when the estate is distributed.

2d. That the executors are entitled to the profits and income of the testator’s interest in the partnership property during the settlement of the estate. ■>

3d. That they have a right at reasonable times and in a proper manner to inspect the partnership books.

4th. The “ fair and just appraisal ” may be the one already made, or the distributors may make another, as may be necessary to make a just and equal distribution.

5th. In making the appraisal the good-will of the business should be considered.

6th. The payment of the excess is not a condition precedent, but is either a condition subsequent or a mere debt or duty.

In this opinion the other judges concurred; except Phelps, J., who did not sit.