54 A. 730 | Conn. | 1903
The appellant's intestate was the only surviving child of Ellen M. Stevens, deceased, who was the wife of Samuel A. Stevens and one of the three surviving children of Henry Ives of New Haven. Henry Ives died intestate in 1859, owning several parcels of real estate. In an undivided two fifths of one of these — a house and lot on Wall Street in New Haven — dower was assigned to his widow, and the other three fifths, under a partial distribution of his estate, became the absolute property of Ellen M. Stevens in 1864. The widow and her daughter (with the husband of the latter, to whom she was married when her father died) resided together in the house until the death of Mrs. Stevens, intestate, in 1881. One of the sons of Henry Ives died unmarried and without issue, in 1871; the other, Frederick Ives, died intestate, leaving a widow and children, in 1883. In 1886, the widow of Henry Ives died, and distributors were appointed by the Court of Probate for the district of New *600 Haven to distribute what of his estate had not been previously distributed, including the proceeds of certain land sold after his death, by the widow and heirs, for $9,278.67.
They set to Mabel I. Stevens, described as "a daughter of Ellen M. Stevens, deceased, and a granddaughter of said Henry Ives, deceased," two undivided fifths of the Wall Street real estate, at their appraisal of $7,200, and $5,539.34 of the proceeds of the lands so sold, amounting to $12,739.34 "set to Mabel Ives Stevens, subject to the life interest therein of Samuel A. Stevens, husband of said Ellen M. Stevens, as tenant by the curtesy." To Susan J. Ives, the widow of Frederick Ives, there was set absolutely a third of the balance of the proceeds of the lands sold, and the other two thirds was divided among and set to his children, together with a parcel of real estate on East Street at an appraisal of $9,000, in which each received an undivided interest, "subject to the dower interest therein of said Susan J. Ives."
The return of this distribution was accepted in 1886 by the Court of Probate, and no appeal was ever taken from the decree of acceptance. Mabel I. Stevens was then a child of thirteen. She lived with her father, Samuel A. Stevens, in the Wall Street house until 1898, when she died unmarried and intestate. Prior to that time, a brick block had been erected, at the expense of Mabel I. Stevens, on a part of the Wall Street lot not occupied by the original house. The appellant's administration account did not charge him with any of the rents and profits received from this block, and the decree of probate, which is the subject of the present proceeding, ordered him to change the account so as to charge himself with two fifths of such rents and profits from the date of the death of Mabel I. Stevens. All the rents and profits had been collected, ever since the block was erected, by Samuel A. Stevens, and appropriated to his own use, under a claim of right as tenant by the curtesy; and as to three fifths of them it is conceded that this claim is a proper one.
A tenancy by the curtesy does not exist in lands in which the wife had only an estate in remainder, expectant upon a life estate created for the benefit of another, which did not *601
terminate during coverture. Todd v. Oviatt,
It does not, however, follow that he was accountable to this appellant for the rents and profits which he had collected from the tenants of the remaining two fifths.
The paper title of the appellant's intestate to that two fifths is derived from the distribution of part of her grandfather's estate in 1886. The estate so distributed, or that in which it originally consisted, had, upon his decease, descended to his heirs at law as tenants in common, subject to his widow's claim of dower. It might have been distributed among them in severalty immediately upon the assignment of dower. Webster v. Merriam,
By this return the share which would have been set in fee to Ellen M. Stevens, the daughter of Henry Ives, had she been living, was set in fee to Mabel I. Stevens, her sole heir at law. It was the statutory duty of the Court of Probate, before accepting it, to ascertain who were the heirs of Henry Ives, and entitled to receive the estate to be distributed.Mack's Appeal,
The distributors not only set the inheritance of Ellen M. Stevens to her daughter, but set it "subject to the life interest therein of Samuel A. Stevens, husband of said Ellen M. Stevens, as tenant by the curtesy." This treated the estate distributed as subject to a burden to which it was not legally subject. Presumably the appraisal at which the estate was set to her was reduced to the extent of the supposed incumbrance, for the whole estate to be distributed was appraised in connection with and for the purposes of the distribution, and it was the evident intent of the distributors to divide it into halves, between the two stocks of descent which had survived to the second generation. *603
There is no occasion to inquire whether the Court of Probate had by law jurisdiction thus to incumber the Wall Street property when set to the appellant's intestate. Having done what all the parties then before it asked it to do or acquiesced in its doing, its decree, never having been appealed from, is conclusive upon them and their privies, among whom are the appellees in the present case, who objected to the allowance of the appellant's administration account. Gates v. Treat,
Each of the parties named in the distribution as beneficially entitled, including Samuel A. Stevens, has taken and held possession under it, and according to its terms. Mabel I. Stevens lived during her whole life upon the land in question. She never, so far as appears, made any demand upon her father for an account of the rents and profits, although her money had been used to increase them. She never appealed from the decree accepting the return of distribution. She never asked a court of equity to remove what, at least, was a serious cloud upon her title. Both she and the appellees, or those to whom the appellees stand in privity, have received and enjoyed all that the distribution purported to give them. The appellees can claim no right which she has waived. Brown v. Wheeler,
There is error; the judgment of the Superior Court is set aside, and the cause remanded with directions to reverse the decree of the Court of Probate.
In this opinion the other judges concurred.