9 Conn. 233 | Conn. | 1832
The appellants claim, that no distribution could be made, by a court of probate, of the land, of which the widow was endowed, during the existence of her life estate. They claim, that such a practice would produce many inconveniences, and is not authorized by statute.
There are, doubtless, cases, in which, from the particular situation of the property, a distribution might be unnecessary and even disadvantageous. Other cases may exist, where the property was so situated and it was so necessary for some of the heirs to dispose of their share, that it would be much for their advantage to have a distribution ; and this single consideration satisfies me, that a power to distribute, lodged in proper hands, would be a salutary authority, and might often prove highly beneficial. The real question, however, is, whether the legislature have granted this power to the court of probate,? And this must depend upon a sound construction of the statute.
By the 29th section of the statute, (tit. Estates,) the court of probate is empowered to make a just division or distribution of all the estate, both real and personal, of an intestate ; one third of the lands and houses to the widow, during her life ; and all the residue and remainder of the real and personal estate to and among the children, &c. It would seem as if this provision was amply sufficient to justify the court of probate in directing a distribution of all the property that the deceased left; and it is apparent, that a distribution of two thirds of the estate in fee, and one third for life, is not a distribution of all the estate, a reversion in one third remaining undivided : of course, the division is not as extensive as is the power to divide. The words all my estate in a will, would convey a reversion or remainder, as well as an interest in possession ; and I see no reason why the same words in a statute should not have the same effect, unless there are other expressions showing a different intent. So far from that, however, this construction comports better with the general intent than a more narrow one; because our law is extremely solicitous, that a complete settlement of the estate of deceased persons should be made, as soon as it can conveniently be done. It cannot, therefore, be
The case of Sumner v. Parker was much relied upon, by the appellants. There the question was, whether the statute of Massachusetts gave power to the court of probate, in the original distribution of an estate, where there were two or more heirs, to settle the reversion of the widow’s dower upon one of them, he paying the appraised value to the other. This provision is founded entirely upon the idea, that in certain cases the property cannot be divided without great prejudice to, or the spoiling of the whole. The court, in giving their opinion in that case, consider their various statutes and the intent
It was also claimed, that this order was defective, as it appeared to be an order to distribute a part of the land of the deceased ; and it did not appear, that it embraced all the estate. It is, however, stated, that the order was to distribute all the estate not before distributed, viz. that part which was set to the widow. Were it otherwise, however, the court would not presume, that the order embraced only part of the estate, which remained undistributed. The appellants claimed, that the court of probate could not appoint new distributors, unless it appeared upon the proceedings, that the former distributors were dead ; and they objected to the admission of parol testimony of that fact.
After those distributors had made their return, and that return was accepted by the court of probate, I incline to think, that their powers were ended ; and that it was not necessary to show, that they were not alive. Without deciding that point, however, in the absence of all proof, and after the lapse of nearly thirty years, I should doubt the propriety of reversing this decree, upon the presumption that these distributors were now alive, and competent to act. A deed or will of thirty years standing requires no proof from witnesses ; the legal presumption is, that they are dead, or do not remember such an ancient transaction ; and if this case is not precisely wilhin that rule, as five months are wanting to complete thirty years, I see no legal objection to proof of the fact.
One other question has been made in this case ; Can the appellants be permitted to show, that the distribution was inequitable, unjust and oppressive ? If this can be done before the court of probate, it may be done in this court; as the return is subject to the same exceptions here as it was in the court below- Sever v. Sever, 8 Mass. Rep. 132. And that such has been the practical construction in the courts of probate, I cannot doubt; and as little do I doubt that it is the correct construction. The law requires, that the court of probate shall make a just division or distribution. It is to be the act of the court. The court, however, is to do this act, by sufficient freeholders ; but as it is the act of the court, it ought to have a supervisory power over those whom it appoints to perform that act. Without such a power, the court cannot see or know whether it be a just division or not. Indeed, it must necessarily be precluded from any enquiry. Now, when we find the legislature, notwithstanding all their anxiety for the speedy settlement of estates, providing, that an appeal shall be allowed from every order, decree, or judgment of the court of probate, can we believe, that they intended a decree or judgment of three freeholders should be conclusive as to the
The case has been compared to that of auditors and arbitrators. The latter are judges of the parties own choosing, and are by them substituted for the court; and auditors are by law expressly required to give notice to the parties ; and then their award is not final, but may be enquired into as to mistakes upon their own principles and mistakes in law. Spendeer v. Usher, 2 Day 116. 121.
It is said, that this principle will be very inconvenient in practice, as the court will be constantly called upon to revise the decisions of distributors. A sound discretion will prevent any interference for trivial mistakes or slight inequalities ; and this being understood, there is little danger of appeals*for such causes. On the other hand, if an appeal is not allowed, great estates may be divided, by three men, appointed without the knowledge, and perhaps contrary to the wishes of some of those most interested in the appointment; and the division may be made without their knowledge ; and without any imputation upon the motives of those who made it, the distribution may be unequal and unjust, and yet must be final.
Such a construction would be contrary to the whole policy of our law, which allows appeals from all decrees of the court of probate ; and allows appeals, in some mode or other, in all other cases, and from all other courts, to the superior court, where the title of land is to be definitively settled, or is in question. I see no reason to believe, that the legislature intended to make this case an exception.
I would, therefore, advise the superior court, that the appellants be permitted to prove the distribution to be unequal and unjust; and that the evidence of the death of the former distributors was admissible ; and that fact being proved, the decree of the court appointing other distributors to set out the reversion in the dower of the widow, was correct.