44 Conn. 461 | Conn. | 1877
The facts found in this case, so far as they relate to the questions we have considered, are briefly as follows :
Sally Ogden by her will, made in 1857, bequeathed all her estate, after having made a single small legacy, to her sister Angeline Ogden, to use for the term of her life; and after her death gave the estate to certain other relatives, and upon certain contingencies to sundry charitable institutions. The defendants are obligors of a bond to the judge of probate for the faithful discharge by the defendant Gilman of his duties as administrator with the will annexed of the estáte1 of the testatrix, and' the present suit is brought in the name-of the judge of probate upon the bond, charging, among other breaches, that the administrator has refused to deliver to Angeline Ogden the personal property of which she has under the will the life use. It is also charged as a breach that the administrator had neglected to pay over to her certain dividends and interest received by him from the personal estate in question. On the trial to the court upon the issue of performance or non-performance, the defendants contended that Angeline Ogden was not entitled to the possession of the personal property until she-had given a bond with surety for the safe keeping of the property during her life and its delivery after her death to the persons interested in remainder; relying upon the statute, (Gen. Statutes, tit. 18, ch. 11, sec. 18,) which provides that “ when a life estate in any personal property shall be given by will to one and the remainder to another, and there shall be no trustee named for such estate during the continuance of the life estate therein, the court of probate "having cognizance of such will may, upon the request of the person entitled to such life estate, order the executor to deliver said personal property to such person, upon his giving bond to the state, with surety, ih a sum equal to double the value of sáid estate, conditioned that said estate shall be. safely and properly kept, to be delivered to the person entitled to receive it on the determination
We think there was no error in this ruling. The only reasonable construction of the statute that has been recited is, that in all cases a legatee for life, who desires to obtain possession of the property, shall apply to the court of probate for an order for its .delivery by the executor, and shall upon such application offer bond with surety for the safe keeping of the pi’operty for the persons interested in remainder. If the legatee for life had a right to demand and receive it without such an application, it is very clear that he would always insist upon the right and obtain possession of the property without giving bond. This would render the statute entirely nugatory. It can practically have no application unless it has a general one. It was intended for the protection of the persons interested in remainder. Before the act was passed they were left to move in the matter and bond was required only at their instance. Langworthy v. Chadwick, 13 Conn., 42. This remedy was often inadequate by reason of the number of persons ultimately interested, some o.f them perhaps contingently, and perhaps all living remote from each other and unable to act promptly and in concert. By such a general law as this these parties are protected,
Upon the claim of the plaintiff that the non-payment to the legatee for life of certain interest and dividends received by the administrator was a breach of the bond, the court ruled that it was not such breach. "We think the court erred in this ruling. The counsel for the defendant contends that the administrator under his bond owed no duty to the legatee for life beyond receiving and safely keeping the property, and paying it over as the court of probate should order—that is, that whatever right the legatee for life might have to the property, or however enforceable that claim may have been against the administrator by a suit brought by her in her own name, yet that no condition of the bond was violated by his neglect or refusal to pay the income to her. The bond it.' is said was only that he should “ well and. truly administer the estate,” “make a true account of his administration” on or before a certain day, and “ deliver all the residue of said estate which should be found remaining unto such person or persons as said court by decree pursuant to law should appoint.” But it is clear that the distribution of the remainder left upon the settlement of the account, and which was to be made to such persons as the court should order, was intended for the final distribution of the estate, to distributees named in the order of distribution, and that no order was intended or can be necessary in the case of mere income to which a legatee for life may be entitled. This payment is necessarily made from time to time, as dividends or interest.
We think the court clearly erred in its ruling on this, point, and that a new trial must be granted on account of it. Other questions were made in the case which it has become unnecessary to consider.
In this opinion the other judges concurred.