Russell v. Hooker

| Conn. | Nov 22, 1895

Baldwin, J.

This action is brought by a citizen of Connecticut against another citizen of Connecticut and two citizens of New York. The defendants are sued as executors of the will of a New York testator, which has been duly-admitted to pi'obate in that State. A legacy of a hundred shares of stock in a Connecticut corporation was left in the will to the plaintiff, in trust for a citizen of this State, and the ground upon which he rests his action is that this legacy was a specific one.

The will under which the plaintiff claims, was that of a citizen of New York, and the property bequeathed to him, so far as any question of testamentary succession is concerned, had its situs, in the eye of the law, at the testator’s domicil. Marcy v. Marcy, 82 Conn., 308" court="Conn." date_filed="1909-07-20" href="https://app.midpage.ai/document/state-ex-rel-moriarty-v-donahue-3321145?utm_source=webapp" opinion_id="3321145">82 Conn., 308, 319. The executors were bound to inventory and account for it before the proper Surrogate’s Court in that State. This obligation was not affected by the grant of ancillary administration to one of them by a Court of Probate in this State. He did not include, and ought not to have included, the stock in question in his inventory filed in that court. It was an asset to be administered under the laws of New York, and under those, only. If the executors transfer it to the plaintiff, or pay him any dividends which they may have collected on it, they must justify their action in the Surrogate’s Court by which their letters testamentary were issued. The shares of stock, which are in controversy, in effect are in the possession of that court. It would therefore be manifestly unreasonable and improper to require the executors to account for them in an action brought by a legatee in the courts of another State. Byers v. McAuley, 149 U.S. 608" court="SCOTUS" date_filed="1893-05-10" href="https://app.midpage.ai/document/byers-v-mcauley-93657?utm_source=webapp" opinion_id="93657">149 U. S. 608, 613, 614.

The plaintiff’s title is derived through the statutes of New York, which regulate testamentary succession. A will operates as a conveyance from the testator, but his right to dispose thus of personal property by a transfer taking effect only after his decease, is derived wholly from the positive law of the State of his domicil. A legatee is in the position of a mere volunteer. He takes only what the law may allow the testator to give him, and it is that law which must determine the construction of the bequest, and the conditions of payment.

This action was commenced by a process of foreign attachment, which was served upon the Connecticut corporation at a time when it had in its possession a dividend on the shares formerly owned by the testator, and still standing in his name upon its books, which had been declared and become payable after his death.

The plaintiff’s case is not helped by this attachment. The moneys which were thus separated from the general assets of the corporation, and divided among its shareholders, came to them as an incident of their stock interests. Whoever owned the shares in question, when the dividend was declared, was entitled to collect it. In law, these shares were then owned by the three executors, claiming under the New York probate proceedings. Tiie plaintiff claims his legacy under the same proceedings. If it is, as he contends, a specific one, he can still gain possession only through a transfer made by the executors, or at least by one of them. The dividends likewise are payable only to them, or to their ordei\ Their relations, so far as the present controversy is concerned, to the shares and the dividends are the same. Both are equally assets of the estate to be accounted for before the Surrogate’s Court in which it is in course of settlement. The plaintiff can no more transfer his controversy with them, as to the true meaning of the will, into the courts of Connecticut by this process of attachment, than he could transfer it to any other State in which he might make some other corporation a garnishee, from which dividends were due and payable upon stock standing in the testator’s name.

The Superior Court is advised to dismiss the plaintiff’s complaint.

In this opinion the other judges concurred.