44 Conn. 512 | Conn. | 1877
Formerly in England the rule prevailed that a lapsed legacy of personal' property fell into the residuary estate, and a lapsed devise of real estate went to the heirs at law. The reason usually assigned in the books for this distinction is, that a devise of real estate operated only upon land whereof the testator was seized when he made his wall, inasmuch as that instrument was deemed to be in the nature of a conveyance or appointment of a specific estate; whereas a bequest of personal property refers to such as he might own at the time of his death. Some of the courts in this country, in adopting and affirming this rule as to lapsed devises of real •estate, have also adopted and affirmed this reason as their own. Others have reached the same result acting upon another principle which obtains in the construction of wills, namely, that the heir at law takes all real estate unless the testator has effectively disposed of it to some one else; that when the devisee dies after the making of the will and before the death of the testator, the latter is held to have designed the estate for the particular person and to have made no disposition of it beyond that; and that from the fact of such omission an irresistible presumption arises that he did not intend to take it away from the heir at law upon the happening of such an event; for if such had been his intention he would have provided in his will for such a contingency. Our own court adopted the rule for the reason that the intent of the testator at the time of making must govern, and that where there is a general devise of the residue and a lapsed devise, so far as the latter is concerned, the testator when making his will intended to dispose of it specifically and did not design that it should fall into the residuum. In Greene v. Dennis, 6 Conn., 304, Hosmer, J., speaking for the court, said: “In relation to real estate, it is an established principle that in case of a lapsed devise the estate does not vest in the residuary devisee, but déscends to the heir at law of the tes
In 1831 our own legislature enacted a law which provides that “any person having power to dispose of real estate by will or testament, may by such will devise real estate not owned by him at the time of making the same, but acquired afterwards.” In 1838 in England an act of Parliament was passed containing substantially the same provision. Similar statutes exist in Massachusetts, New York, Virginia, New Hampshire, Pennsylvania, Maine, Vermont, and several other states. Doubtless some of the courts which had previously affirmed the old English rule upon principles laid down and reasons given by English courts, have now abolished the distinction between lapsed devises and lapsed legacies, inasmuch as the enactment of these statutes has destroyed the original reason for its existence; and it would appear that these courts have given to their respective statutes more power over the rule of law referred to than did the courts in England; for there the act of Parliament made the new rule as to lapsed devises of real estate which several of our own courts have established upon reasoning and upon analogies.
But, as in our own state the rule has stood from the first upon another principle, and as that principle remains unaffected by the change in legislation, the rule itself stands unchanged by our own court. In Brewster v. McCall’s Devisees, 15 Conn., 275, Storrs, J., said: “The devise to the Cornwall school having failed, a question is made whether that portion
This case was determined in 1842; the will there in question was made, it is true, in 1826, five years prior to the enabling act of 1831; and while the court determines that-for that reason the land acquired after the execution of the-will did not pass by a devise therein, yet the plain import of the decision, derived as well from what it says as from what it does not say, is, that the rule of law which carried lapsed devises of real property to heirs at law, as laid down in Greene v. Dennis, for reasons there given, remains and still is the law of Connecticut. It is not suggested by the court that it was abolished or even affected by the statute of 1831.
The statute, (Revision of 1875, title 18, chap. 11, sec. 28,) provides that the executors and administrators of deceased persons shall, during the settlement of the estates of such decedents, have the possession, care and control of their real estate; and all the products and income of such real estate during such time shall vest in the executors and administrators in the same manner as personal property, if such real estate shall not have been specifically devised, nor any directions given by will with regard to it, inconsistent herewith.” Upon this the residuary legatees insist that, even if the real estate passed to the heirs at law, the rent which that estate earned after the death of the testatrix belongs to themselves.
We cannot accede to this proposition. When a decedent-
In this opinion the other judges concurred.