Shey's Appeal From Probate

46 A. 832 | Conn. | 1900

The testatrix made her "executors hereinafter named" trustees for her infant great-granddaughter, and then named two executors, one (the appellant) being the father of this child. By a codicil she provided for the death of the child under age and without issue, giving in that event $800 to the appellant. In a later codicil this legacy was revoked, and also the appointment of the appellant as an executor, a direction being added that the other whom she had named for that office should be the sole executor.

A will and its codicils, if there are any, are the expression of a single testamentary act. The different papers are to be read as constituting an entirety, which is not complete until the latest of them is given appropriate and — in case of conflict — controlling effect.

The term "hereinafter named," which the testatrix used to describe her executors, referred to those finally named by operative words. Colt v. Colt, 33 Conn. 270, 280. But one was thus finally named, and he was expressly made sole executor. The functions conferred upon the executors by the first article of the will plainly went with the office. The use of the same words of description, "hereinafter named," in the third article, indicates prima facie that the trust which it creates was also attached to the office, and this presumption is strengthened by the fact that the revocation in the second codicil, of the appellant's appointment as executor, is accompanied by a revocation of the legacy in his favor. It was, therefore, properly adjudged by the Court of Probate that the appointment of Mr. Shey as trustee had been revoked, and so that he should not be allowed to qualify as such.

To retain his rights as a trustee, if he had any, it was necessary to appeal from this decree; but he had none, and therefore it should have been affirmed.

There is error; the judgment of the Superior Court is reversed and the decree of the Court of Probate is affirmed.

In this opinion the other judges concurred.