Talcott v. Talcott

39 Conn. 186 | Conn. | 1872

FOSTER, J.

The will before us is very inartificially drawn, and the intent4 of the testator is so vaguely expressed that we find some difficulty in giving a satisfactory construction to the instrument.

As the widow has renounced the specific provisions of the will in her favor, electing to take her dower, which has been legally-.set out to her in lieu thereof, our attention will be directed to the disposition made of the residuum of the estate. All this is given to Mrs. Harriet L. Talcott, Howard S. Talcott, Hattie Louise Talcott, and all the children born of said Harriet Talcott’s body; Mrs. Ella E. Cooke, and all the children born of her body; and all the children of Ann P. Burke, deceased, to wit, Albert L. Burke, Oliver P. Burke, George W. Burke, Joseph C. Burke, and S. Jennie Burke. Mrs. Talcott and Mrs. Cooke are daughters of the testator; each is married. Mrs. Talcott has two children, Howard S. and Hattie Louise. Mrs. Cooke has none. Ann P. Burke was a daughter of the testator’s wife by a former husband, and was a member of the testator’s family from the time of her mother’s marriage with him till her own marriage, which was about fifteen years. That these persons take the whole of the testator’s estate, except what was given to the. widow, is admitted, but the question is in what proportions do they take, per'cap-ita, or per stirpes, individually, or as classes ? In the event of a distribution per capita, the division must be into ninths; if into classes, into thirds.

The language used by the testator is not sufficiently explicit to remove all doubt, but taking the whole instrument together, we think he intended a division into classes. This gives to Mrs. Talcott and her children one-third; to Mrs. Cooke one-third, and to the children of Mrs. Burke one-third of the property. A division into ninths would give Mrs. Cooke, his own daughter, but one-ninth, and to the children of Mrs. Burke, strangers in blood, five-ninths, of the property. Placing ourselves in the position of the testator, we cannot think that this was his intention. The statute of distribution would give the whole estate to Mrs. Talcott and Mrs. Cooke, and unless it is otherwise disposed of by the will they are not to be disinherited. We think the testator intended to recognize Mrs. Burke as his own daughter, and to give to her children, she being deceased, one-third of his estate. Bond’s Appeal from, Probate, 31 Conn., 183; and Lyon v. Acker, 33 Conn., 222, among many other cases which might be referred to, contain principles which are applicable to this case.

The Superior Court is advised that the beneficiaries in this will take as classes; that the division be made into thirds— one-third to each class.'

In this opinion the other judges concurred; except Carpenter, J., who was absent.