Angus v. Noble

• Decision Date: 22 May 1900
• Parties: ANGUS v. NOBLE et al.
• Court: Connecticut Supreme Court

46 A. 278

73 Conn. 56

ANGUS

v. NOBLE et al.

Supreme Court of Errors of Connecticut

May 22, 1900.

Case reserved from superior court, Hartford county; Silas A. Robinson, Judge.

Suit by Hattie Angus, as executrix of the estate of Susan Mansley, against George Noble and others, for the construction of a will. Case reserved on special finding.

The will was drawn by the testatrix herself in 1897, and was as follows: "I, Susan Mansley, of Enfield, Hartford county, state of Connecticut of sound mind and memory, do make my last will and testament, revoking all wills heretofore made by me void. After the payment of my just debts, obligations, expenses of last sickness, funeral, and expenses of settling my estate, 1 do give, bequeath, and devise my estate as follows: (1) I give to my niece, Hattie Angus, one hundred dollars every three months while she lives, and at her death to be divided among the other heirs. (2) I leave to my brother George Noble forty dollars every three months, and at his death to go to his children. (3) I leave to my brother William Noble forty dollars every three months, and at his death to go to his wife, and at her death to go to the other heirs. They have no children. (4) I leave to my nephew John Noble twenty-five dollars every three months, and at his death to go to his children. (5) I leave to my nephew William Noble twenty-five dollars every three months, and at his death to go to Annie Noble, his daughter, and at her death to go back to the Nobles, if she has no children. (6) I leave to my nephew Walter Maude, England, fifteen dollars every three months, and at his death to go to his children. (7) I leave to John W. Maude fifteen dollars every three months, and at his death to go back to the heirs. (8) The rents to be paid every month, and kept for three months, and all debts to be paid out of them; the balance to be kept until the end of the year, and then to be divided among the heirs. The estate to be kept up in good repair, and our graves to be kept clean, and flowers once in a while, to show that you have not forgotten us. (9) I would like my estate to be in Thompsonville, for I have lived here so long, and I would like the estate kept as it is. (10) To the First Presbyterian Society, on Church street, in Thompsonville, Conn., I give the sum of five hundred dollars, to be kept as a separate fund, and the income thereof to be paid over to the home missions with which the said church is connected. This can be taken from the mortgage of Frederick and Emma Gliesman, of North Main street, Thompsonville, and the other six hundred that is due on the mortgage to go to the children of Mr. and W. H. Whitney, one for each, and one for Clark Hamilton, that will take up the mortgage, or, if all parties wish, they can take the interest thereof, and keep the mortgage. I appoint my niece, Hattie Angus, executrix of this will, no bonds being required of her; and, if she shall be unable or unwill ing to act as executor of this will, then J appoint Lilla Noble. They will have to collect all rents and pay all debts. Divide balance, if any, and, if you go short, take out of each one share." She died in 1899, leaving real and personal property. When she made her will her estate was yielding an Income nearly or quite sufficient to pay the annuities therein given, but before she died she gave away part of it and the income of what she left was not sufficient for that purpose. The gross rental of her real estate is $95 a month. Walter Maude is dead. The other facts found are sufficiently stated in the opinion.

Charles H. Briscoe, for plaintiff. Charles E. Perkins, for defendants William Noble and wife. William H. Leete, for defendants the children of George and John Noble and the children of Walter Maude.

BALDWIN, J.(after stating the facts). The heirs of the testatrix were two brothers; Hattie Angus; John Noble and William V. Noble, the children of a deceased brother; and John W. Maude and Walter Maude, the children of a deceased sister. In her will she makes provision for each of them, by name, and in a way which shows that she did not intend to be governed by the principles of the statute of distributions. The bequests of specified sums to be paid every three months to Hattie Angus, George Noble, William Noble (her brother), John Noble, William Noble (her nephew), Walter Maude, and John W. Maude are each valid. It is argued in behalf of the heirs at law that these three piovisions are inconsistent with that in the eighth clause of the will', which is that the rents are to be paid (by which is obviously meant that they are to be collected) "every month, and kept for three months, and all debts to be paid out of them; the balance to be kept until the end of the year, and then to be divided among the heirs." It is apparent that the term "debts" was here used as including the quarterly payments to the legatees. The fund out of which they were to come was, by the opening words of her will, to come into existence only after the payment of all her debts and obligations, the expenses of her last sickness and funeral, and those of settling her estate. She evidently thought there might be a surplus of rents after satisfying all payments which she had directed, but, as the collections might be better in one quarter than another, it would be wiser not to divide such surplus oftener than once a year. This construction is confirmed by the statement with which the will concludes,—that the executrix would "have to collect all rents and pay all debts. Divide balance, if any, and, if you go short, take out of each one share." To "go short," in the mind of the testatrix, evidently meant to be unable, from the net income available, for the purpose, to pay the full amount of the quarterly legacies every three months, since the remedy she provides in that case is a corresponding deduction from the share of each. If these legacies were not considered as coming under the term "debts," that word must have been used to signify either debts due at her decease from her estate, or those subsequently contracted by the executrix. That it did not mean those due at her decease is proved by the express provision for their payment before any legacies. That it did not mean only those subsequently contracted by the executrix is shown by the provision for deducting whatever is necessary to meet them from the shares of the annuitants. This presupposes that there will be some thing left to go to the legatees, whereas there could be nothing left if the entire income were wanted to meet the proper charges of administration. The phrase "each one share" should read "each one's share." This is justified by the rule of idem sonans. She intended that each legatee should receive his full annuity if the income proved adequate, but, if not, that his appointed share should be proportionally reduced.

The executrix was given the functions of a trustee, and is entitled to qualify as such, after completing the settlement of the estate. It is unimportant that the name of trustee was not conferred upon her in terms. Hayden v. Connecticut Hospital, (54 Conn. 320, 323, 30 Atl. 50. The trust will continue until the decease of Hattie Angus, George Noble, William Noble, Sarah J. Noble (the present wife of William Noble), John Noble, William V. Noble, Annie Noble, and John W. Maude, subject to the power of the court of probate to direct a partial distribution of the estate from time to time, if it be deemed expedient and can be done without prejudice to the interests of the annuitants then surviving. The ultimate remainders to take effect in enjoyment after the determination of these life estates became vested at the death of the testatrix.

The introductory part of the will concludes thus: "I do give, bequeath, and devise my estate as follows." These words import an intention to dispose of the whole of it. Only $1,100, however, is afterwards made the subject of an absolute gift in express terms. This is preceded by other bequests which will exhaust the income annually accruing from the residue of the estate during the lives of certain persons particularly described. The ultimate remainders over are also interests in the income, but these are not limited in terms to the lives of the remaindermen. A devise of the rents of a parcel of real estate is, in law, a devise of the parcel itself. Stewart v. Garnett, 3 Sim. 308. It is such because the value of land lies in its rents and profits, and he who is given that value is in effect given the thing which produces it. The same rule applies to a gift of the income of an estate or of the produce of a fund, without limit as to time. Mannox v. Greener, L. R. 14 Eq. 456; Gulick's Ex'rs v. Gulick, 25 N. J. Eq. 324; Bristol v. Bristol, 53 Conn. 242, 259, 5 Atl. 687.

Under these principles of construction, effect may properly be given to the general intent of the testatrix in creating the various remainders...